State v. Starks

• Decision Date: 12 July 2013
• Docket Number: No. 2010AP425.,2010AP425.
• Citation: 349 Wis.2d 274,2013 WI 69,833 N.W.2d 146
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Tramell E. STARKS, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

349 Wis.2d 274

833 N.W.2d 146

2013 WI 69

STATE of Wisconsin, Plaintiff–Respondent,^†

v.Tramell E. STARKS, Defendant–Appellant–Petitioner.^††

No. 2010AP425.

Supreme Court of Wisconsin.

Argued Jan. 9, 2013.

Decided July 12, 2013.

For the defendant-appellant-petitioner, there were briefs by Tricia J. Bushnell, Caitlin Plummer, Lindsey E. Smith and law student practitioners Michael Boshardy, R. Warren Beck, and Joshua Jarrett, and Frank J. Remington Center, Madison, with oral argument by Tricia J. Bushnell.

For the plaintiff-respondent, the cause was argued by Sarah K. Larson, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.

MICHAEL J. GABLEMAN, J.

[349 Wis.2d 279]¶ 1 This case began with the murder of Lee Weddle in his apartment on a spring day in 2005. A subsequent police investigation resulted in charges against the petitioner in this case, Tramell E. Starks, for first-degree intentional homicide as a party to a crime and possession of a firearm by a felon. Following a jury trial, he was convicted of the lesser-included offense of reckless homicide and the felon-in-possession of a firearm charge.¹ On direct appeal, Starks's convictions were affirmed. State v. Starks, No. 2008AP790–CR, 2008 WL 5334921, unpublished slip op. (Wis.Ct.App. Dec. 23, 2008)( Starks I ).

¶ 2 Subsequently, Starks filed a motion pursuant to Wis. Stat. § 974.06² (2011–12) ³ with the circuit court,⁴ alleging that the attorney who handled his appeal was ineffective for failing to raise ineffective assistance of trial counsel claims. The circuit court dismissed this motion for exceeding the local rule on page length limit. Two days later, Starks filed a motion with the circuit court to vacate his assessed DNA surcharge pursuant to State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393 (henceforth “ Cherry motion”). This motion was denied as untimely. Starks then refiled his original § 974.06 motion with the circuit court, this time within the page limit requirement. The circuit court rejected Starks's motion on the merits and denied his request for an evidentiary hearing, finding that he had not set forth a viable claim for relief.

¶ 3 The court of appeals affirmed the circuit court, although on different grounds. State v. Starks, No. 2010AP425, 2011 WL 2314951, unpublished slip op. (Wis.Ct.App. June 14, 2011)( Starks II ). It held that Starks's second Wis. Stat. § 974.06 motion was procedurally barred because Starks could have, but did not, raise his ineffective assistance of counsel arguments in his Cherry motion. Starks II, No. 2010AP425, ¶ 6.

[349 Wis.2d 281]¶ 4 At the outset we note that there is a procedural problem in this case. Starks's Wis. Stat. § 974.06 motion, which was filed with the circuit court, alleged ineffective assistance of postconviction counsel. However, the attorney who represented him after his conviction did not file any postconviction motions and instead pursued a direct appeal. He was thus not Starks's postconviction counsel but was rather his appellate counsel. This is significant because claims of ineffective assistance of appellate counsel must be filed in the form of a petition for a writ of habeas corpus with the court of appeals. State v. Knight, 168 Wis.2d 509, 520, 484 N.W.2d 540 (1992). By bringing his claim in the circuit court, Starks pursued his case in the wrong forum. However, because the erroneous filing deprived the circuit court of competency rather than jurisdiction, our review of his case is appropriate.

¶ 5 Three issues are presented in this case. The first is whether a Cherry motion to vacate a DNA surcharge is considered a “prior motion” under § 974.06(4), such that a defendant is required to raise postconviction ineffective assistance of counsel arguments in his Cherry motion. The second issue we address is the appropriate pleading standard a court must utilize when a defendant alleges in a petition for writ of habeas corpus that his appellate counsel was ineffective for failing to raise certain arguments. Finally, we must determine whether Starks received ineffective assistance of appellate counsel.

¶ 6 With respect to the Cherry motion issue, we hold that because sentence modification is a distinct procedure from Wis. Stat. § 974.06 motions, a defendant is not required to shoehorn ineffective assistance of postconviction counsel arguments into a Cherrymotion. As to the second issue, the proper pleading standard, we hold that a defendant who argues in a habeas petition that he received ineffective assistance of appellate counsel because certain arguments were not raised must demonstrate that the claims he believes should have been raised on appeal were “clearly stronger” than the claims that were raised. On the third and final question of whether Starks received ineffective assistance of appellate counsel, we hold that because the arguments Starks believes should have been raised were not clearly stronger than the arguments that were raised in his appeal, Starks's appellate attorney was not ineffective. We therefore affirm the court of appeals.

I. FACTUAL BACKGROUND

¶ 7 On the afternoon of March 31, 2005, Milwaukee police officers were dispatched to Lee Weddle's duplex apartment after a man in the upper unit called 911 to report that he heard a fight in the apartment beneath him followed by several gunshots.⁵ When police arrived, they found Weddle lying face down in a pool of blood. He was pronounced dead shortly thereafter.

¶ 8 Five days after the shooting, police received an anonymous tip that Starks was the killer, and that Antwon Nellum, Wayne Rogers, and other unidentified people were present during the shooting. The Milwaukee Police Department notified its officers on April 15, 2005 that Starks was a suspect in Weddle's murder. On April 20, Nellum was arrested for a domestic violence matter and a parole violation. When questioned about Weddle's murder, Nellum answered that he could not disclose what had occurred because police could not guarantee his safety and that of his family.

[349 Wis.2d 283]¶ 9 Starks voluntarily spoke with police on April 21, but denied knowing Weddle, Nellum, or Rogers, or anything about the murder. Nellum was then interviewed a second time on April 22. This time he told the detectives that he had not been candid during his first interview about what occurred on March 31 because he was afraid of Starks. During the second interview Nellum said that he witnessed a fight between Starks and Weddle and that he left because he thought that Starks “was going to do something real crazy.” Nellum said that as he was running out of the apartment, he heard four or five gunshots.

¶ 10 Nellum was released from custody on July 7, 2005, and found murdered in his car three weeks later, his vehicle riddled with two dozen bullet holes.

¶ 11 Rogers was arrested on a drug offense and brought into custody in August 2005. He was asked about Weddle's murder and opined, “ya'll already know who killed him,” although he claimed he was asleep in the apartment when the shots were fired and thus did not see the shooting. During a later interview, however, his story changed. At that second interview, Rogers noted that Weddle was his best friend and that he wanted to “come clean” now that he was no longer scared of what Starks would do to him if he told the truth. According to Rogers, Starks was at the apartment complaining to everyone present about comments Weddle had made regarding Starks's girlfriend. When Weddle arrived, a confrontation between Starks and Weddle ensued. Starks threw the first punch, but Weddle fought back. After Weddle pulled out a clump of Starks's hair, Starks accused him of “fight[ing] dirty.” Starks was then handed a gun by Mario Mills, turned around, and shot Weddle two times. Before Rogers ran out of the apartment, he heard Weddle say, “man, you killed me.” Rogers then heard three or four more shots as he was leaving the apartment. Later that day, Rogers called Mills to ask if Weddle was all right. Starks, who was with Mills, got on the phone and said, “F––– [Weddle].”

¶ 12 Starks and Mills were arrested and both charged with first-degree intentional homicide as a party to a crime and possession of a firearm by a felon. Pursuant to a plea agreement, Mills admitted to the crime of furnishing a firearm to a felon. Starks, however, pled not guilty as to both counts and the case was tried to a jury in December 2006. The State relied on the eyewitness accounts of three men who were present when the shooting occurred: Rogers, Devin Ward, and Carvius Williams. Rogers gave the same account of the murder at trial as he did to police investigators during his second interview. Ward and Williams provided testimony very similar to Rogers', although Ward related that he left the apartment during the fight and was walking towards his car when he heard shots fired.

¶ 13 The State also called Starks's cousin, Trenton Gray, to the witness stand. Gray testified that on the day of Weddle's murder Starks called him “in a state of distress.” As Gray recounted, “he was asking me if he can go to a place that I had been previously in my life up in North Dakota, would he be able to take refuge for some things that he believe[d] he had done.” When Gray asked Starks what was going on, he said, “I don't know, cuz, I think I just murdered somebody.” Gray also testified that in a later conversation between the two about the murder, Starks told him about the fight and that Mills provided the gun to Starks. Gray further testified that Starks wanted to kill Williams because Starks believed that Williams “was telling on him about the murder” at a funeral.

[349 Wis.2d 285]¶ 14 The jury convicted Starks of the lesser-included offense of first-degree reckless homicide and also the...