Mey, Mark v. Richardson, Reed

Filing 33

Transmission of Notice of Appeal, Docketing Statement, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 30 Notice of Appeal. (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Judgment, # 4 Docket Sheet) (nln),(ps)

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

MARK J. MEY,
Petitioner,
v.

OPINION & ORDER
15-cv-740-jdp

REED RICHARDSON,
Respondent.

Petitioner Mark J. Mey, a Wisconsin prisoner incarcerated at the Stanley Correctional
Institution, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He challenges a state
conviction from the Dane County Circuit Court for three counts of being party to attempted
homicide and three counts of being party to endangering safety by use of a firearm. I screened
his petition and allowed him to proceed with an ineffective assistance of counsel claim.
Mey argues that his trial counsel was ineffective for (1) allowing gang-related evidence
to be admitted during the trial and (2) failing to object to an erroneous jury instruction where
the trial court mistakenly stated that Mey had pleaded guilty. As for the gang-related evidence,
Mey has not shown that his trial attorney’s performance was deficient or that the attorney’s
error prejudiced him. As for the jury instruction, the attorney’s failure to object to the erroneous
jury instruction could be deficient, but Mey has not shown that he was prejudiced by his
attorney’s failure to object. Accordingly, I will deny Mey’s petition.

BACKGROUND
This case is about a shooting between two rival gangs, the Crips and the Bloods. In July
2005, Mey was a member of the Crips, who decided to “up his standing” within the Crips by

“ripping off” a high-ranking member of the Bloods, Sombath Lo, also known as “Fat Boi.”
Dkt. 11-8, at 540. Mey and two others stole about $7,000, along with a .22 lemon-squeeze
pistol from Lo. Id. The next day, Lo found out what Mey had done and ordered an SOS (shooton-sight) on Mey. But a few other Bloods, who were relatives of Mey, decided that they would
not let Mey be killed. Mey learned about the SOS on him and decided to carry out a
“preemptive strike,” with the help of other Crips and some Bloods who chose their familial ties
with Mey over their gang allegiance. Id., at 553. They carried out the attack on August 9, 2005,
in the Village of Oregon, Wisconsin, where they shot and injured three victims.
At least 11 individuals participated in the shooting. Mey and three other co-defendants
went to trial. Mey’s defense was that he was not one of the shooters. Dkt. 11-5, at 359-65
(Mey’s opening statement); Dkt. 11-8, at 604-40 (closing argument by Mey’s attorney). After
a two-week trial, the jury found each of the defendants guilty on six counts: three counts of
being party to attempted first-degree intentional homicide and three counts of being party to
endangering safety by use of a firearm. The court sentenced Mey to 24 years of initial
confinement and 9 years of extended supervision. Dkt. 11-2, at 34-35.1
In this habeas petition, Mey challenges two aspects of his attorney’s performance during
the trial: the attorney’s failure to object to (1) admission of “gang-related evidence” and (2)
the circuit court’s erroneous instruction to the jury that Mey had pleaded guilty.

1

Mey’s brief indicates that his sentence is 26 years of initial confinement and 11 years of
extended supervision. Dkt. 22, at 6. But I will rely on the sentence length indicated in the
circuit court’s judgment. Dkt. 11-2, at 34-35.

2

A. Gang-related evidence
Before the trial began, the defense attorneys collectively sought to prevent the state
from introducing evidence of gang affiliations and gang activities. Dkt. 11-4, at 296-97. The
state argued that the gang-related evidence was to provide “context to complete the story”—
i.e., the Crips versus Bloods rivalry—whereas the defense argued that the gang evidence was
“prejudicial and unnecessary.” Id. at 297. The circuit court rejected the defense’s argument and
explained that the evidence was relevant, but it also ruled that the state could not “make
gratuitous use” of the gang-related evidence to suggest that the defendants were guilty solely
because of their gang affiliations. Id. at 300-01. In response to the ruling, Mey’s attorney
proposed a limiting instruction on gang-related evidence, which the court adopted. Id. at 300.
That instruction directed the jury not to infer guilt based on testimony about gang affiliation.
Dkt. 11-2, at 94.
During the trial, the state and the defense both elicited gang-related evidence. Indeed,
gang rivalry and violence among gang members turned out to be pretty much the whole case
for both sides at trial. Mey’s attorney did not object either to the state’s or co-defendants’ use
of gang-related evidence and the attorney himself elicited testimony about gangs.
B. Jury instruction
At the close of the trial, the court instructed the jury on the elements of attempted firstdegree intentional homicide. Dkt. 11-8, at 509-12. The court gave this instruction three times,
once for each count. During the instruction on the first count, the court told the jury that “[t]o
this charge, each of the defendants before you has entered a plea of not guilty, which means the
State must prove every element of the offense charged beyond a reasonable doubt.” Id. at 510

3

(emphasis added). But during instruction on the second and third counts, the court omitted
the word “not” and told the jury as follows:
To this charge, each of the defendants before you has entered a
plea of guilty, which means that the State must prove every
element of the offense charged beyond a reasonable doubt.”
Id. at 551-52 (emphasis added). The parties agree that the instruction should have been read
“not guilty.” No attorney in the courtroom—the prosecutor or any of the defense attorneys—
objected.
There is some doubt whether the court actually omitted the word “not.” Stakes were
high for all parties, and there were five experienced attorneys in the courtroom. But the trial
transcript shows that the court omitted the word “not,” id., so I will presume, for the purposes
of this opinion, that the circuit court did omit it.
C. Procedural history
Mey appealed with the help of his appellate counsel, arguing that the state had
insufficient evidence and that the jury should have been instructed to a possible lesser-included
offense. Dkt. 11-2, at 185. The Wisconsin Court of Appeals affirmed. Id. at 279. The
Wisconsin Supreme Court denied Mey’s petition for review. Id. at 321.
Mey then returned to the circuit court and moved for postconviction relief, pro se. Id.
at 128. Before the circuit court, he raised three arguments:
(1) his trial counsel was ineffective for allowing gang-related
evidence beyond the scope of the circuit court’s pretrial order;
(2) the circuit court erred by allowing the introduction of gangrelated evidence; and
(3) the circuit court erred by telling the jury that Mey had pleaded
guilty.

4

Id. at 131-48. The circuit court denied Mey’s motion in an oral ruling. Dkt. 11-9, at 58. Mey
appealed, but he raised slightly different arguments before the Wisconsin Court of Appeals:
(1) his attorney was ineffective for allowing the state and codefendants to elicit gang-related evidence;
(2) the circuit court erred by giving the erroneous jury instruction;
and
(3) the circuit court erred by misapplying the standards
promulgated under State v. Escalona-Naranjo, 185 Wis. 2d 168,
517 N.W.2d 157 (1994).
Dkt. 11-3, at 8-40. The Wisconsin Court of Appeals affirmed the circuit court’s denial of
postconviction relief. Id. at 452. The Wisconsin Supreme Court denied Mey’s petition for
review. Id. at 534.
Mey then filed his habeas petition with this court. In support of his petition, he raised
four grounds:
(1) his attorney was ineffective for failing to object to the state’s use
of gang evidence as contrary to the court’s pretrial rulings;
(2) his attorney was ineffective for failing to object to the codefendants’ attorneys’ use of gang evidence;
(3) his attorney was ineffective for presenting the jury with highly
prejudicial gang evidence; and
(4) his attorney was ineffective for failing to object to the trial court’s
errors in delivering the jury instructions.
Dkt. 1, at 8-25.2 I screened his petition and allowed him to proceed on all four grounds.

2

As respondent points out, the four “grounds” identified by Mey are really one federal claim
based on ineffective assistance of counsel. See Peoples v. United States, 403 F.3d 844, 848 (7th
Cir. 2005) (“[I]neffective assistance of counsel is a single ground for relief no matter how many
failings the lawyer may have displayed.”). But he raised these grounds as separate claims before
the state courts and continues to do so in his habeas briefs. The state courts addressed these
issues separately, and so will I. I will also consider the combined, cumulative effects of gangrelated evidence, as Mey urges in his brief.

5

ANALYSIS
Under Section 2254, a federal district court may grant habeas relief only when the
petitioner demonstrates that he is in custody “in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Because Mey is in custody pursuant to a state
judgment, so Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996, governs his petition. 28 U.S.C. 2254(d). Section 2254(d) severely restricts a
federal district court’s review of a state judgment:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d); Conner v. McBride, 375 F.3d 643, 648-49 (7th Cir. 2004). Once the state
court has adjudicated the petitioner’s claims on the merits, the federal court must be “highly
deferential” to the state court’s decision. Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015). Habeas
relief is “a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86,
102-03 (2011) (citation and quotation marks omitted). To obtain habeas relief, the petitioner
must show that the state court’s decision “was so lacking in justification that there was error
well understood and comprehended in existing law beyond any possibility for fairminded

6

disagreement.” Id. at 103. “If this standard is difficult to meet, that is because it was meant to
be.” Id. at 102.
Here, the last state court to address Mey’s arguments was the Wisconsin Court of
Appeals, so the opinion of the Wisconsin Court of Appeals is the “operative decision” for Mey’s
petition. See Campbell v. Reardon, 780 F.3d 752, 762 (7th Cir. 2015) (“The operative decision
under review is that of the last state court to address a given claim on the merits.”). As for the
issues adjudicated on the merits, my task is to determine whether the Wisconsin Court of
Appeals reasonably applied federal law or unreasonably determined facts; I do not
independently perform the analysis based on the facts of Mey’s case. Carrion v. Butler, 835 F.3d
764, 772 (7th Cir. 2016) (citations omitted). As for the few issues that the Wisconsin Court
of Appeals did not adjudicate on the merits, which I will identify below, the applicable standard
is de novo. Brown v. Brown, 847 F.3d 502, 506 (7th Cir. 2017) (citing Cone v. Bell, 556 U.S.
449, 472 (2009) and Warren v. Baenen, 712 F.3d 1090, 1096, 1098 (7th Cir. 2013)).
All of Mey’s arguments concern ineffective assistance of counsel, so the familiar twostep inquiry under Strickland guides the analysis below. First, Mey must show that his “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Second, May must show that the deficient performance caused him prejudice, which requires
“showing that counsel’s errors were so serious as to deprive [petitioner] of a fair trial.” Id.
“[B]ecause the Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). This
standard is “doubly deferential” on habeas corpus review. Id.; see also Richter, 562 U.S. at 105

7

(reasoning that the Strickland requirements and § 2254(d) are “highly deferential,” and
“‘doubly’ so” when applied in tandem (citations omitted)).
A. Procedural default
Before reaching the merits, I will first address respondent’s procedural default defense.
A habeas petitioner must fairly present his claims “through a full round of state court review.”
Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016). The purpose of this requirement
is to give the state an opportunity to correct its own errors alleged by the petitioner. Id. Failure
to present his claims fairly to the state courts results in procedural default, and the federal court
may decline to consider the procedurally defaulted claims. Id.
But a procedural default is an affirmative defense that can be waived. Perruquet v. Briley,
390 F.3d 505, 515 (7th Cir. 2004). A respondent can waive the procedural default defense in
several ways. See Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir. 2004) (summarizing case law).
But one sure way to do it is by explicitly stating that it will not pursue a procedural default
defense. Henderson v. Thieret, 859 F.2d 492, 498 (7th Cir. 1988). When a respondent explicitly
waives the procedural defense, a district court “is not permitted to override the state’s decision
. . . to forego that defense.” Id.
Here, respondent waived his procedural default defense by pleading in his answer as
follows:
Warden Richardson does not contend that Mey procedurally
defaulted his federal claims.
Dkt. 11, at 4. Once respondent disavowed the procedural default defense, it was inappropriate
to press the issue in his brief. See Dkt. 25, 16-19. Because respondent explicitly waived his
procedural default defense, I will decide Mey’s petition on the merits.

8

B. Gang-related evidence
Mey contends that his attorney erred for: (1) failing to object to the state’s use of gangrelated evidence; (2) failing to object to other defense counsel’s use of gang-related evidence;
and (3) using the gang-related evidence himself. The Wisconsin Court of Appeals reached the
merits of some, but not all, of these issues. As for the state’s use of gang-related evidence, the
court of appeals assumed that Mey’s attorney’s was deficient, but it nonetheless concluded that
the state’s use of gang-related evidence did not prejudice Mey. Dkt. 11-3, at 454-56. Thus, I
will review the deficiency prong de novo; as for the prejudice prong, I will give the court of
appeals the AEDPA deference and consider whether the state court unreasonably applied
Strickland. As for the defense counsel’s and Mey’s own attorney’s use of gang-related evidence,
the Wisconsin Court of Appeals declined to reach the merits because Mey had raised these
issues for the first time on appeal. Dkt. 27, at 14. I will review these issues de novo.
Applying these standards, I conclude that Mey has established neither deficiency nor
prejudice under Strickland as to the gang-related evidence.
1. The state’s use of gang-related evidence
Mey identifies in his habeas brief four instances where the state solicited gang-related
evidence: when the prosecutor asked (1) Andrew Pirsch, how he was “jumped” and subjected
to violence to become a member of the Bloods; (2) Dela San, what would happen to a gang
member if he violated the rules of his gang; (3) Botmanya Men, whether the shooting at issue
was a Crips operation; and (4) Nathan Jenkins, whether Mey was one of the Crips members
who said that, if Jenkins did not participate in the shooting, Jenkins would be “violated.”
Dkt. 22, at 13-15.3 According to Mey, the testimony of these witnesses informed the jury that

3

There were actually more gang references by the state than the four examples identified by

9

Mey had violent tendencies because of his gang membership. He argues that his attorney
should have objected on the grounds that the state’s solicitation of this testimony violated the
circuit court’s pretrial ruling against gratuitous use of gang-related evidence.
Mey’s attorney was not deficient for not objecting to this testimony because the
objections would have been futile. See Carter v. Douma, 796 F.3d 726, 735 (7th Cir. 2015)
(concluding that an attorney “was not deficient by failing to make a futile objection.”). Before
the trial, the circuit court denied the defense attorneys’ motion to exclude all gang-related
evidence and rejected their argument that the gang-related evidence was prejudicial and
unnecessary. The court explained,
[I]t’s relevant because it explains why certain people are
associating allegedly with certain other people in furtherance of
alleged criminal activity. This stands on different grounds from a
situation, whereby, if we simply have a single defendant who was
charged, and nothing in the charge indicates along the lines of,
because of association with or being a member of a certain ethnic
group, or what have you, simply somebody is charged with a
violent crime, to bring out, for gratuitous purposes, the fact
they’re a member of a gang, would be wrong, because it’s
irrelevant. It’s got nothing to do with whether or not they
committed the crime.
***
The Court’s ruling is the State can’t make gratuitous use of this;
in other words, convict him because he’s a member of a gang. Not
used gratuitously, but, in the relevant sense, how do you explain
why this person is hanging around with this person, that’s because
they’re affiliated together in a social club, which goes by the name
of Crips or Bloods.
Dkt. 11-4, at 299-301. Thus, the court’s ruling was that it would admit gang-related evidence
that is relevant to show motive or conspiracy, but it would exclude gratuitous gang-related

Mey. Dkt. 11-3, at 254-57. But Mey challenges only these four.

10

evidence used to prove guilty solely on defendants’ gang affiliations. And the testimony
identified by Mey did not violate the circuit court’s ruling because they were probative of the
defendants’ motive: as the state argued during the trial, the fear of gang violence motivated the
defendants to carry out the shooting before Fat Boi could retaliate. Indeed, as the circuit court
explained during the postconviction-motion hearing,
Quite frankly, I don’t see how either a prosecutor or any defense
counsel in this case would be able to effectively present evidence
to a jury and make their arguments to a jury if they had been
forbidden from making any reference whatsoever to gang
relations. Gang relations, that is, either a member of the Crips or
Bloods, ran throughout the thread of this trial. It related to all of
the convictions of which Mr. Mey stands -- or all the offenses for
which Mr. Mey stands convicted.
***
There was no ineffective assistance by Mr. Geier for failing to
object because there was no reason to object.
Dkt. 11-9, at 58-60. The state’s solicitation of gang-related evidence did not violate the circuit
court’s pretrial order, and Mey’s attorney was not deficient for deciding not to make futile
objections.
Mey’s attorney was not deficient also because he used the gang-related evidence as part
of his trial strategy. A trial strategy that falls within “the wide range of competent
representation” precludes an ineffective assistance of counsel claim. Yu Tian Li v. United States,
648 F.3d 524, 527 (7th Cir. 2011). When a petitioner challenges his attorney’s strategy, the
court must also evaluate the attorney’s performance “in light of the discretion properly
accorded an attorney to develop appropriate trial strategies according to the attorney’s
independent judgment, given the facts of the case, at least some of which may not be reflected
in the trial record.” Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013).

11

Here, Mey’s attorney decided to allow the gang-related evidence in and use it for Mey’s
defense. For example, the attorney argued during the closing that given the violence and
hierarchy in gangs, Mey, who was only a 16-year-old at the time, could not have been the leader
who organized the shooting: the adult gangsters were the ones who called the “shots.” Dkt. 118, at 610. Likewise, Mey’s attorney used the gang-related evidence to undermine the state’s
theory that an enforcer of the Bloods alerted others about the pending SOS, which, according
to the state, prompted the defendants to carry out the shooting. The gang-related evidence
showed that the Bloods enforcer had a strong motive not to “snitch” in fear of retaliation from
other members of the Bloods. Dkt. 11-8, at 614.
The attorney’s choice to use the gang-related evidence in Mey’s defense was reasonable.
In light of the circuit court’s pretrial order, Mey’s attorney could not exclude the gang-related
evidence. He instead decided to do what he could given the circumstances, which was to use
the gang-related evidence for Mey’s defense. True, despite this strategic choice, Mey was
convicted. But given the circumstances, if the attorney’s choice to use the gang-related evidence
was—at most—a reasonable miscalculation, and that miscalculation falls short of being a
deprivation of counsel under the Sixth Amendment. See Makiel v. Butler, 782 F.3d 882, 901–
02 (7th Cir. 2015) (“There is ‘no expectation that competent counsel will be a flawless
strategist or tactician,’ and an attorney is not incompetent simply because of a ‘reasonable
miscalculation.’” (quoting Richter, 562 U.S. at 110)); McAfee v. Thurmer, 589 F.3d 353, 355-56
(7th Cir. 2009) (“[C]ounsel “need not be perfect, indeed not even very good, to be
constitutionally adequate.” (quoting Dean v. Young, 777 F.2d 1239, 1245 (7th Cir.1985)). And
in this case, it is not clear that defense counsel’s use of the gang-related evidence could even be
called a miscalculation.

12

Even if Mey’s attorney were deficient, the Wisconsin Court of Appeals did not err by
concluding that the attorney’s error did not prejudice Mey. To establish prejudice, Mey must
show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Richter, 562 U.S. at 104. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. To establish a “reasonable
probability,” showing that the attorney’s error had “some conceivable effect on the outcome”
is not enough. Id. Rather, the error must be “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Id. This inquiry requires the court to consider the “totality
of the evidence before the judge or jury. Harris v. Thompson, 698 F.3d 609, 645 (7th Cir. 2012)
(quoting Strickland, 466 U.S. at 695). A jury’s verdict “only weakly supported by the record is
more likely to have been affected by errors than one with overwhelming record support.” Id.
Here, Mey had no reasonable probability that, but for his attorney’s errors, the jury
would have reached a different result. As Mey indicated in his postconviction brief, “[t]he
central issue at trial” was “whether Mey was one of the shooters.” Dkt. 11-3, at 171. The
evidence clearly showed that he was. For example, one of the former co-defendants, Lucas
Rodriguez, testified that after the shooting, Mey claimed to have “shot like 10 [bullets] or
something like that.” Dkt. 11-6, at 44. According to Rodriguez, Mey “wanted to use the MAC,”
a submachine gun, and another former co-defendant, Dela San, confirmed that he saw Mey
carrying a MAC-11 and saw Mey use it during the shooting.4 Yet another former co-defendant,

4

Dkt. 11-5, at 751 (Lucas Rodriguez) (“Mark said he wanted to use the MAC.”) and Dkt. 116, at 453 (Dela San) (“[Paul Mey] said we were going to go look for the Bloods out there and
try to get them before they get us. . . . Mark had the MAC-11”), 459 (“Q. . . . Did you see
Mark shooting the gun he had? A. Yes.”).

13

Andrew Pirsch, testified that he knew that Mey and others would go to Oregon to shoot at
people, saw Mey carry the MAC-11, and saw Mey shoot it.5
Respondent contends that these witness statements show only glimpses of Mey’s
lengthy trial and that the evidence against Mey was overwhelming. Mey does not respond to
respondent’s argument, so I need not recount every piece of evidence the state had presented
against Mey. Given the evidence against Mey identified by respondent, the Wisconsin Court
of Appeals did not err in concluding that the gang-related evidence did not undermine the
court’s confidence in the jury verdict.
2. Defense counsel’s use of gang-related evidence
As for the co-defendants counsel’s use of gang-related evidence, Mey fails to satisfy the
deficiency prong of Strickland. He identifies three examples where the co-defendants’ counsel
elicited gang-related evidence: they asked (1) Andrew Pirch, how he would be punished if he
had failed to obey the orders from gang leaders; (2) Nora Van, whether a gang member could
be murdered for failure to obey an order from a gang leader; and (3) Lucas Rodriguez, how the
initiation process for joining a gang involved being subjected to violence, Dkt. 22, at 17-19.
But Mey does not explain how his attorney’s failure to object to these statements was in error.
Mey’s entire argument as to the deficiency prong is as follows:
There are pitfalls when co-defendants’ are tried together and it is
trial counsels’ obligation to be mindful of those pitfalls. Failing to
do so falls well below the objective standard of reasonableness
that is addressed by Strickland.

5

Dkt. 11-6, at 232-33 (Andrew Pirsch) (“A. Mark asked to use it in Oregon because he was
trying to figure out where we were going to go after. . . . Q. What were you going to do? A.
Shoot at them.”), 237 (“Q. What did you see Mark do? A. Mark was ahead of me, so I saw
him shoot.”), 264 (“Q. Who had that gun at the time of the shooting? A. Mark”).

14

Dkt. 22, at 19. Mey offers no more than this conclusory assertion, so his argument is
undeveloped. He has therefore waived this argument, Fabriko Acquisition Corp. v. Prokos, 536
F.3d 605, 609 (7th Cir. 2008), and he has not carried his burden to show that the attorney’s
error was “so serious that counsel was not functioning as the ‘counsel’” promised under the
Sixth Amendment, Richter, 562 U.S. at 104.
3. Use of gang-related evidence by Mey’s own attorney
As for his own attorney’s use of gang-related evidence, Mey identifies just one instance:
the attorney questioned Rannzyno Bou, one of the Blood enforcers, about how he got beat up
by a “bunch” of other Blood enforcers for urinating on a car that belonged to the kingpin of
the Bloods, Fat Boi.6 Dkt. 11-7, at 494. Mey calls the testimony of Bou “highly prejudicial”
and contends that the attorney had no rational reason to elicit this testimony. Dkt. 22, at 1921. But Mey’s attorney did have a rational reason.
During closing arguments, Mey’s attorney argued that Fat Boi had great influence
because of his status as the kingpin of the Bloods in the Chicago area. Dkt. 11-8, at 607. He
also argued that if a powerful kingpin like Fat Boi really wanted Mey dead and issued an SOS
on him, he could have sent his right-hand man known as “Peanuts” to kill Mey on the same
day, without leaving Mey a chance for a preemptive attack. Id. Thus, according to the attorney,
the state’s theory that Fat Boi ordered the SOS on Mey and that Mey participated in the
shooting as a preemptive strike was implausible. Bou’s testimony supported the attorney’s
efforts to undermine the state’s theory: if Fat Boi was really a powerful kingpin who would

6

Mey refers to the witness as “Bau,” Dkt. 22, at 20, but the correct name of the witness is
Rannzyno Bou. During the trial, he was also referred to by his nickname, Dino. Dkt. 11-7, at
463.

15

order the assault on a member of his own gang just for urinating on his car, then Fat Boi would
order his enforcers to kill a member of a rival gang immediately for stealing money from him.
Moreover, this testimony was elicited on the seventh day of the trial, when numerous other
gang references had already been made by the state and the co-defendants. Given these
circumstances, eliciting Bou’s testimony, if it were error at all, was not so serious to be a
constitutional deprivation of counsel.
The attorney’s error also did not prejudice Mey, given that the testimony was about
Bou, not Mey. Mey argues that he was prejudiced because he was depicted of having a violent
character based on Bou’s testimony, but that argument is tenuous given that Bou’s incident
with Fat Boi had nothing to do with him. Besides, Bou’s testimony allows, at most, the
inference that “gang members are violent,” but this was something that the jury already knew
by the seventh day of Mey’s trial.
Mey also argues that his attorney and other defense counsel violated the circuit court’s
order. Dkt. 22, at 21. But the circuit court’s pretrial order as to the gang-related evidence
pertained to only the state’s use of such evidence. It did not address the use of such evidence
by the defense.
4. Cumulative effect of gang-related evidence
Mey also contends that all gang-related evidence—introduced by the state, codefendants’ counsel, and his own attorney, considered together—cumulatively prejudiced him
and that his attorney was ineffective for allowing this to happen. Not so. As noted above, given
the weight of the evidence against Mey, he had no reasonable probability that, but for his
attorney’s errors, the jury would have reached a different outcome. Mey had denied being one

16

of the shooters, but multiple witnesses testified that he was, in fact, one of the shooters. The
evidence supports the jury verdict.
Aside from the evidence against Mey, the harm caused by the gang-related evidence was
also mitigated by a limiting instruction. At the request of Mey’s attorney, the circuit court
instructed the jury not to infer guilt based on gang affiliation. Dkt. 11-2, at 94. Mey does not
argue that this limiting instruction was ineffective.
Mey instead argues that “the devastating effect of [his attorney’s failure to object to
gang-related evidence] cannot be overstated. Plain and simply, the jury was painted a picture
of Mr. Mey as having a violent character.” Dkt. 22, at 21. This argument is undeveloped and
conclusory. Because Mey does not explain how the absence of gang-related evidence would
have changed the outcome, he has not carried his burden to satisfy the Strickland requirements.7
C. Jury instruction
Mey’s last argument is that his attorney failed to object to the closing jury instructions
on the second and third counts of attempted homicide. In particular, he argues that the
attorney should have objected when the court told the jury the following:
To this charge, each of the defendants before you has entered a
plea of guilty, which means that the State must prove every
element of the offense charged beyond a reasonable doubt.

7

Mey does not challenge the trial court’s decision to allow gang-related evidence. But even if
he did, it would not necessarily be an error entitling him to habeas relief. Courts have
recognized that evidence of gang affiliation is “potentially prejudicial and inflammatory, as it
poses the risk that the jury will associate gang membership with a propensity for committing
crimes and find the defendant guilty by association.” United States v. Ozuna, 674 F.3d 677, 681
(7th Cir. 2012). But evidence of gang affiliation “is not automatically inadmissible.” Id. Indeed,
courts have recognized that the evidence of gang affiliation is more probative than prejudicial
in numerous cases. See, e.g., United States v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996). One of
those instances is where, as it is the case here, the evidence of gang affiliation is admitted to
show motive. Ozuna, 674 F.3d at 681.

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Dkt. 11-8, at 551-52 (emphasis added). On appeal, Mey argued that the circuit court erred in
the jury instruction, although he did not argue then that his attorney failed to object to the
jury instruction. The Wisconsin Court of Appeals held that the circuit court’s error in the jury
instruction did not prejudice Mey because “most jurors would understand this was an error by
the court” and “[t]he remainder of the instructions made it clear that it was the jury’s task to
determine the defendants’ guilt on all counts that were subject of the trial.” Dkt. 11-3, at 45354.
Respondent argues that Mey procedurally defaulted by casting the issue as an error by
the circuit court, not by his attorney. But as noted above, respondent explicitly waived the
defense of procedural default. Accordingly, I will address the merits of Mey’s argument. The
applicable standard here is again de novo because the Wisconsin Court of Appeals did not
address the merits of Mey’s argument under the Strickland analysis.8 I conclude that Mey was
not prejudiced by his attorney’s failure to object to the jury instruction given the context of
the full instructions.
If the problematic instruction were the only guidance the circuit court gave to the jury,
Mey’s argument would have a stronger claim. But as many trial courts do, the circuit court here
gave its jury instructions at multiple stages of the trial, and the instructions given during the

8

It is arguable that the Wisconsin Court of Appeals reached the merits of Mey’s arguments,
and thus the applicable standard is a deferential one under the AEDPA. The court concluded
that Mey was not prejudiced due to the erroneous jury instruction, and if the jury instruction
did not prejudice Mey, his attorney’s failure to object did not prejudice him either. When the
merits of a federal claim are “effectively reached” in a different context, the AEDPA’s
deferential standard could apply to the state court’s decision. See Sturgeon v. Chandler, 552 F.3d
604, 611-12 (7th Cir. 2009). On the other hand, the prejudice analysis applied to a trial court’s
error and the one under Strickland differ slightly. In any event, this is immaterial here because
even under the less deferential standard, de novo, Mey cannot prevail.

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other parts of the trial made clear that Mey’s guilt had not been determined. For example, at
the beginning of the trial, the circuit court explained that the state must prove defendants’
guilt. Dkt. 11-2, at 82 (“The burden of establishing every fact necessary to constitute guilt is
upon the State. Before you can return a verdict of guilty, the evidence must satisfy you beyond
a reasonable doubt that the defendant is guilty”). Likewise, during the closing instructions, the
court instructed the jury that it is their role to decide defendants’ guilt. See Dkt. 11-8, at 510
(“You, the jury, are the sole judges of the facts, and the Court is the judge of the law only.”),
513-14 (“It is for you to decide, as to each defendant before you, whether defendant is guilty
or not guilty of the offenses charged in the Information.”). And even during the problematic
jury instruction itself, the court stated immediately after the problematic part that “the State
must prove every element of the offense charged beyond a reasonable doubt.” Id. at 551-52.
The court also gave the problematic jury instruction before the closing argument by
Mey’s attorney, who argued for Mey’s innocence. See id. at 604-40. A juror could have been
confused at first by the problematic instruction, but a rational juror would have realized, before
deliberating, that the trial court had merely misspoken, and that the jury needed to decide
whether Mey was guilty based on the evidence presented.

CONCLUSION
For the foregoing reasons, I will deny Mey’s petition. As for the gang-related evidence,
Mey has not shown that his trial attorney was deficient or that the attorney’s error prejudiced
him. As for the jury instruction, he was not prejudiced by his attorney’s failure to object.

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CERTIFICATE OF APPEALABILITY
Under Rule 11 of the Rules Governing Section 2254 Cases, I must issue or deny a
certificate of appealability when entering a final order adverse to a petitioner. A certificate of
appealability will not issue unless petitioner makes “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). Although the rule allows me to ask the parties to submit arguments
on whether a certificate should issue, it is not necessary to do so in this case. For the reasons
already stated, I conclude that Mey has not made a showing, substantial or otherwise, that his
conviction was obtained in violation of clearly established federal law as decided by the
Supreme Court. Because reasonable jurists would not otherwise debate whether a different
result was required, I will not issue Mey a certificate of appealability.

ORDER
IT IS ORDERED that:
1. Petitioner Mark J. Mey’s petition for a writ of habeas corpus, Dkt. 1, is
DENIED.
2. This case is DISMISSED.
3. A certificate of appealability is DENIED. If petitioner wishes, he may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure
22.
4. The clerk of court is directed to close this case.
Entered April 19, 2017.

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BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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