Lusk v. Radtke
| Decision Date | 24 March 2022 |
| Docket Number | Case No. 20-C-0463 |
| Citation | 593 F.Supp.3d 862 |
| Parties | Deontaye Terrell LUSK, Petitioner, v. Warden Dylan RADTKE, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Deontaye Terrell Lusk, Green Bay, WI, Pro Se.
Abigail CS Potts, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Respondent.
DECISION AND ORDER
Deontaye Lusk petitions for a writ of habeas corpus under 28 U.S.C. § 2254. He brings claims for ineffective assistance of trial and postconviction/appellate counsel and contends that any procedural default of his claims should be set aside on the ground that he is actually innocent.
Following a single jury trial, Lusk was found guilty and convicted of thirteen crimes, including two counts of first-degree intentional homicide. The charges stemmed from a series of armed robberies that occurred between April 9, 2009 and July 12, 2009 in the City of Milwaukee. Lusk's habeas claims focus on the convictions that arose out of two distinct incidents: (1) the attempted robbery and murder of Eric Garrett, which occurred in the early morning hours of June 21, 2009, and (2) the robbery of Jugady Banks and the murder of John Brown, both of which occurred early on July 12, 2009 outside of a tavern or club called the Plan B. I will provide factual details for these events only.
At about 2:00 a.m. on June 21, 2009, several youths were socializing in and around their parked cars on a neighborhood street when two men approached. One of them confronted Eric Garrett and asked him what he had in his pocket. When Garrett said "nothing," the person shot him in the chest. Garrett died of the gunshot wound. At trial, three eyewitnesses—Kimberly Neal, Jessica Garrett, and Brittany Pendelton—identified Lusk as the shooter. Prior to trial, these three witnesses also identified Lusk during police-conducted lineups. According to the trial court's docket, Lusk's trial counsel filed motion to suppress the identifications made by these witnesses, but the trial court denied the motion. (Answer Ex. 1-A, entry for July 23, 2010; ECF No. 16-1.) The federal record does not contain a transcript of the suppression hearing or information about the parties’ arguments or the court's ruling, other than the following entry on the docket:
Matter in court for the Court's Decision on defense motion challenging identification of State's witnesses. Court finds that the State has met the identification challenge as far as witness Ms. Kimberly N. The Court will allow the testimony of Ms. Kimberly N. in at trial. As for witness, Ms. Jessica G., the court finds her identification of the defendant to be reliable. Court will allow the testimony of Ms. Jessica G. at trial. Court finds that Ms. Brittany P.’s identification of defendant was very positive. Court denied defense motion to suppress the identification of Ms. Kimberly N., Ms. Jessica G., and Ms. Brittany P. They will be allowed to testify at trial.
(Id. ) At trial, all three witnesses identified Lusk in court, and the state introduced Garrett's and Pendelton's out-of-court identifications. The state, however, did not introduce evidence of Neal's out-of-court identification. The jury convicted Lusk of all crimes that were charged in connection with the murder of Eric Garrett.
The other relevant crimes occurred on July 12, 2009. At about 2:00 a.m., a person named Katie Dean exited the Plan B Tavern with her nephew, Jugady Banks. At trial, Dean testified that Banks went to his car ahead of her and that, when she arrived at the car, she noticed that a man was patting Banks down with a gun and that another man was leaning against the car. She saw two other men she believed were involved in the robbery. Dean identified one of the men as Lusk and another as Timothy Carter. Dean testified that she had seen Lusk inside the Plan B earlier that evening. She testified that Carter was the man with the gun. The state also introduced evidence that, prior to trial, Dean had identified Lusk after the police showed her a photo array. Dean testified that, during the robbery, Lusk took a pack of cigarettes that he found in Banks's pockets. The men then advised Banks to drive away before they started shooting. Banks told Dean to get in the car, and after she did so they drove away. Dean testified that, as they were driving away, she heard gunshots coming from the Plan B.
At about this time, the events surrounding the murder of John Brown were unfolding. Just prior to the murder, Brown was sitting in the passenger seat of a truck that was double parked on the street near the Plan B. The truck belonged to Anthony Heard, who was in the driver's seat. Heard had just driven Brown to the Plan B because his car was parked in its parking lot. Heard and Brown were talking with each other in the truck when they heard a gunshot coming from the parking lot. Heard testified that a group of young men were in the lot, and that one of them had just fired a shot. Heard asked Brown what he wanted to do, and Brown said that he wanted to go to the lot and get his car. After Heard confirmed that this was really what Brown wanted to do, Heard drove his truck into the lot, near the group of young men. Brown exited the vehicle and was immediately confronted by the group. Heard testified that Brown told one of the men that he was just going to his car. Heard then saw the man point his gun at Brown and shoot. At this point, Heard drove away. Brown died from the gunshot wound.
Heard did not identify the person who shot Brown. However, the testimony of Katie Dean, which identified Lusk as one of the men who had robbed her nephew moments earlier, put Lusk at the scene of the crime. Likewise, the owner of the Plan B, Nicole Tanner, testified that Lusk had been inside the tavern that evening and left at around the time the bar closed, which was when Banks was robbed and Brown was killed. The state then presented the testimony of Dennis Avant, who claimed to witness Lusk shoot Brown. At the time of trial, Avant had been convicted of eleven felonies and was being prosecuted for an open drug offense. He testified that, although he was not promised anything in exchange for his testimony, he agreed to testify against Lusk in the hopes that the prosecution would take his cooperation into consideration in his drug case. On cross-examination, Avant said that the open drug case began when he was arrested by a police officer named Michael Vagnini. Although unknown at the time of Lusk's trial, it was later revealed that Vagnini was performing illegal body-cavity searches on suspects. After the illegal searches came to light, Vagnini was dismissed from the police force and criminally prosecuted. Avant testified that, after Vagnini arrested him, Avant told Vagnini that he had information about Brown's murder, and that Vagnini arranged for him to speak with detectives from the homicide unit.
Avant testified that, at about 2:00 a.m. on July 12, 2009, he was at the Plan B and saw Lusk and Timothy Carter there. Avant said he knew both men before that night. He testified that, when he left the Plan B and was going to his car in the parking lot, he saw Lusk and Carter in a group of about four people and that they were arguing with a man and possibly trying to rob him. Avant testified that he saw Carter shoot a gun into the air and then give the gun to Lusk. Avant testified that Lusk told the man to "break his self," which Avant understood to be a demand for the man to give Lusk his valuables. According to Avant, when the man told Lusk he had nothing, Lusk shot him. Avant said that Lusk and Carter then entered a truck and drove away. Avant testified that he walked up to the victim, looked at him, and then got into his own car and drove away.
The state also called Antwan Green to testify against Lusk. At the time of trial, Green had been adjudicated a juvenile delinquent eight times and was then in custody. He testified that, following his arrest on August 2, 2009, he agreed to talk to the police about Lusk. Green testified that, on the night of Brown's murder, he was out with some of his friends when the group received a call from Lusk at about 2:45 a.m. The group went to meet Lusk, and Green claimed that when they arrived Lusk told them that he had shot someone. However, after Green finished testifying, it was discovered that he was in a juvenile correctional facility on the night Brown was shot and therefore could not have met Lusk on the street that night. Green was still at the courthouse at the time of this discovery, and the court arranged for the public defender to represent him on possible perjury charges. After counsel was appointed, Green returned to the stand and, in front of the jury, admitted that his testimony was false. Green then invoked his Fifth Amendment right against self-incrimination. During closing arguments, the prosecutor admitted that Green had committed perjury and apologized to the jury for presenting his false testimony.
As a result of the events that occurred during the early morning of July 12, 2009, Lusk was charged with robbery with threat of force, first-degree intentional homicide by use of a dangerous weapon, and being a felon in possession of a firearm. The jury convicted him of all counts.
On direct review in state court, Lusk was represented by Attorney Matthew Pinix. In Wisconsin, direct review often begins with the filing of a postconviction motion in the trial court. In such a motion, the defendant can raise claims of ineffective assistance of trial counsel and other claims that might require an evidentiary hearing. Once the postconviction motion is resolved, the defendant may appeal to the Wisconsin Court of Appeals. However, if the defendant does not intend to raise issues on appeal that might require an evidentiary hearing, then a postconviction motion is unnecessary and the defendant may proceed with an appeal.
On December 15, 2011, while...
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