Starks, Adrian v. Meisner, Michael

Filing 42

ORDER that by May 22, 2017, petitioner Adrian Alexander Starks must submit a brief addressing when he obtained the evidence regarding Michael Ace's cause of death, whether it was presented to the Wisconsin state courts, and whether he wants t o stay his habeas petition so that he can present any unexhausted claims to the state courts. Respondent may submit a brief in response by June 12, 2017. Petitioner may submit a brief in reply by June 26, 2017. Signed by District Judge James D. Peterson on 4/24/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ADRIAN ALEXANDER STARKS,
Petitioner,

ORDER

v.
MICHAEL MEISNER, Warden,

14-cv-844-jdp

Respondent.
Petitioner Adrian Alexander Starks is currently in the custody of the Wisconsin
Department of Corrections at the Redgranite Correctional Institution. He seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction for two
counts of first-degree reckless homicide—under Wisconsin’s “Len Bias” law assigning criminal
liability to the manufacturer or distributor of a controlled substance that is a substantial factor
in a victim’s death—and one count of delivery of more than 50 grams of heroin. Dkt. 9. The
parties have briefed Starks’s petition, which normally would be ready for a decision. But before
analyzing the reasonableness of the Wisconsin Court of Appeals’ decision denying Starks’s
claims, I must determine what evidence I can consider in my analysis.
In his habeas petition, Starks argues, among other things, that his trial counsel was
ineffective for advising Starks to stipulate that heroin caused Michael Ace’s death after
reviewing a coroner’s report on Ace’s death, which listed the manner of death as “accidental.”
Dkt. 17-3, at 18. Starks made this same argument to the Wisconsin Court of Appeals. Starks
contends that the Wisconsin Court of Appeals’ decision rejecting this claim was objectively
unreasonable, entitling him to relief under § 2254(d)(1).
Starks now relies on four pieces of evidence in support of his argument:



An undated coroner’s report listing Ace’s manner of death as
“accidental” and including a printout from the state crime lab
listing the drugs found in Ace’s system and noting that
morphine was identified at a level of 77 micrograms per liter
in Ace’s blood. See Dkt. 17-3, at 18-19.



Dr. Robert Huntington’s dictated notes from his May 6, 2005
autopsy of Ace, which states that Ace may have died due to
“intoxication or . . . intoxication plus aspiration,” and lists
“coronary artery disease” as an “alternate possibility.”
Dkt. 32-9, at 1-3.



A state crime lab toxicology report dated July 25, 2005, listing
the drugs found in Ace’s system, noting that morphine was
identified at a level of 77 micrograms per liter in Ace’s blood,
and explaining that the “reported therapeutic level of
morphine in blood is 100” micrograms per liter. Dkt. 32-8, at
1-2.



Dr. Huntington’s August 8, 2005 autopsy report, which
states, “This is a drug death. Serious coronary disease is also
present.” Dkt. 36-4.

Although neither party raises this issue, my review of the record indicates that the
appeals court may not have reviewed some of the pieces of evidence that Starks now offers in
support of his claim. “[E]vidence introduced in federal court has no bearing on § 2254(d)(1)
review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner
must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”
Cullen v. Pinholster, 563 U.S. 170, 185 (2011). In other words, my task under § 2254(d)(1) is
to review the reasonableness of the decision of the Wisconsin Court of Appeals, and in doing
so, I am limited to the evidence that was before that court.
The undated deputy coroner’s report was provided to the appeals court by Starks in the
appendix to his appellate brief, see Dkt. 17-3, so I am satisfied that I may consider this piece of
evidence when reviewing Starks’s claims. The state cited Dr. Huntington’s August 8 autopsy
report in its appellate brief, see Dkt. 17-4, and the report was mentioned during the trial court’s

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hearing on Starks’s motion for postconviction relief, a transcript of which was provided to the
appeals court, see Dkt. 17-32, at 41-42, so it appears likely that the report was before the
appeals court, too. But unlike the deputy coroner’s report, there is no copy of the August 8
autopsy report in the state-court record to confirm this. And there is no indication that the
appeals court was provided with Dr. Huntington’s dictated autopsy notes or the July 25
toxicology report. Neither party discussed these two pieces of evidence in their appellate briefs,
and the appeals court did not mention them in its decision denying Starks’s appeal.
If the August 8 autopsy report, dictated autopsy notes, and July 25 toxicology report
are new evidence that was not before the appeals court when it rendered its decision, I cannot
consider that new evidence when reviewing the reasonableness of the appeals court’s decision.
In that case, depending on when and how Starks obtained the new evidence, I may have the
option of staying his habeas petition to allow him to pursue an unexhausted claim concerning
the new evidence in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005). But at the
moment, I simply do not have enough information to determine how to proceed. So I will order
the parties to submit briefs on this issue. In his brief, Starks should explain when he obtained
the August 8 autopsy report, dictated autopsy notes, and July 25 toxicology report and whether
he presented that evidence to the Wisconsin state courts. He should also explain whether, if
some of this evidence is new, he wants to (1) stay his case and return to federal court after he
has exhausted his claims based on the new evidence in state court; or (2) proceed only with the
currently exhausted claims, keeping in mind that “doing so risks subjecting later petitions that
raise new claims to rigorous procedural obstacles.” Burton v. Stewart, 549 U.S. 147, 154 (2007).
After reviewing the parties’ briefs, I will determine how to proceed with my review of Starks’s
habeas petition.

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ORDER
IT IS ORDERED that:
1. By May 22, 2017, petitioner Adrian Alexander Starks must submit a brief
addressing when he obtained the evidence regarding Michael Ace’s cause of death,
whether it was presented to the Wisconsin state courts, and whether he wants to
stay his habeas petition so that he can present any unexhausted claims to the state
courts.
2. Respondent may submit a brief in response by June 12, 2017.
3. Petitioner may submit a brief in reply by June 26, 2017.
Entered April 24, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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