State v. Tramell E. Starks

2014 WI 91
OFFICE OF THE CLERK

110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WI 53701-1688
TELEPHONE (608) 266-1880
FACSIMILE (608) 267-0640
Web Site: www.wicourts.gov

July 24, 2014
To:

Hon. Kevin E. Martens
Circuit Court Judge Robert R. Henak
Safety Building Courtroom, # 502 Henak Law Office, S.C.
821 W. State Street 316 N. Milwaukee St., Ste. 535
Milwaukee, WI 53233-1427 Milwaukee, WI 53202

John Barrett Sarah K. Larson
Clerk of Circuit Court Assistant Attorney General
Room 114 P. O. Box 7857
821 W. State Street Madison, WI 53707-7857
Milwaukee, WI 53233

Karen A. Loebel
Asst. District Attorney
821 W. State St.
Milwaukee, WI 53233

You are hereby notified that the Court has entered the following order:

2010AP425 State v. Tramell E. Starks LC # 2006CF450

The court having considered the Motion for Reconsideration filed in the above matter,

IT IS ORDERED that the Motion for Reconsideration is denied, without costs.

Diane M. Fremgen
Clerk of Supreme Court
 No. 2010AP425.ssa

¶1 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The

State's and the defendant's motions for reconsideration have

been pending in this court for nearly a year. They have

obviously troubled the court.

¶2 The State and the defendant, opposing parties that

generally do not see eye-to-eye on legal or factual issues,

agree for the most part in their reconsideration motions. They

agree, as do I, that this court erred in the Starks majority

opinion in discussing and deciding basic "bread and butter

issues," issues that arise frequently in circuit courts and the

court of appeals and require clarity for all litigants.

¶3 I would not have a full-blown reconsideration of the

Starks case. I would, however, have the court revise the Starks

opinion in a per curiam response to the motions, as has been our

practice in other cases when the court needs to revise an

opinion.

¶4 Correcting the majority's errors in Starks is

important even though defendant Starks may not benefit from any
correction of the Starks majority opinion. Indeed both the

State's and the defendant's motions acknowledge that Mr. Starks

will not personally benefit from their motions.

¶5 The court's lengthy discussion of criminal post-

conviction and appeal procedure in the Starks majority opinion

affects more than the defendant, Starks. It is precedential for

all cases and all courts. In their motions for reconsideration,

both counsel are acting as officers of the court in seeking

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reconsideration and clarification of the opinion, as well as

adversary counsel. They should be commended.

¶6 The Starks opinion needs modification. I am concerned

that unless a reader is familiar with the State's and the

defendant's well-reasoned motions to reconsider the Starks

majority opinion, the reader may not fully understand the nature

of the errors in the Starks majority opinion and the needed

corrections. I have therefore attached to this concurrence a

copy of both the State's and defendant's motions to assist the

reader.

¶7 Other cases raising issues addressed in Starks will

come before this court. I would prefer that modifications to

the Starks majority opinion be done in a per curiam opinion on

the motions to reconsider now rather than piecemeal in other

cases.1

¶8 For the reasons set forth, I cannot join the order

that denies the motions for reconsideration and fails to modify

the Starks opinion.

1
See, e.g., Kyles v. Pollard, 2014 WI 38, ___ Wis. 2d ___,
___ N.W.2d ___; State v. Romero-Georgana, 2014 WI 83, ___
Wis. 2d ___, ___ N.W.2d ___.

3
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APPENDIX A

1
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2
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3
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4
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5
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6
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7
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8
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APPENDIX B

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10
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11
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13
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¶9 DAVID T. PROSSER, J. (concurring). The court has

voted unanimously to deny the motions for reconsideration. This

concurrence is one justice's explanation of his vote.

¶10 Last term, the court issued an opinion in State v.

Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, affirming

an unpublished decision of the court of appeals, State v.

Starks, No. 2010AP425, unpublished slip op. (Wis. Ct. App. June

14, 2011). In so doing, the court upheld the convictions of

Tramell E. Starks (Starks) for first-degree reckless homicide

and felon-in-possession of a firearm against constitutional

attack by Starks, pursuant to Wis. Stat. § 974.06.

¶11 The procedural issues in the case were both

complicated and unusual. In 2006 Starks was charged with being

a felon in possession of a firearm and, more important, with

first-degree intentional homicide as a party to the crime. He

was represented at trial by Attorney Michael John Steinle. A

jury convicted Starks of the felon-in-possession-of-a-firearm
offense and first-degree reckless homicide, a lesser included

offense of first-degree intentional homicide.2

¶12 Following Starks's conviction, the Public Defender's

Office appointed a new attorney, Robert Kagen, to represent

Starks in postconviction proceedings. Attorney Kagen did not

file any postconviction motions under Wis. Stat. § 974.02.

Instead he filed a direct appeal, raising four claims, none of

2
Milwaukee County Circuit Judge William W. Brash III
presided at Starks's trial.

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which alleged that Starks's trial counsel was ineffective. The

court of appeals affirmed both convictions. State v. Starks,

No. 2008AP790-CR, unpublished slip op. (Wis. Ct. App. Dec. 23,

2008). This court denied Starks's petition for review.

¶13 Approximately three years after the jury trial and one

year after the decision in the unsuccessful appeal, Starks,

acting pro se, filed a Wis. Stat. § 974.06 motion with the

circuit court, alleging ineffective assistance of postconviction

counsel. Starks alleged that Attorney Kagen was ineffective for

failing to raise numerous claims about the ineffective

assistance of trial counsel (Steinle) and that, consequently, he

was entitled to an evidentiary hearing on these claims.

¶14 The circuit court dismissed the § 974.06 motion on

grounds that it exceeded the Milwaukee County Circuit Court page

limit. This dismissal occurred on January 4, 2010.

¶15 Two days later, Starks, again acting pro se, filed a

motion pursuant to State v. Cherry, 2008 WI App 80, 312

Wis. 2d 203, 752 N.W.2d 393, to vacate his DNA surcharge. The
motion was denied on grounds that the motion was not timely.

¶16 Thereafter, Starks refiled his first § 974.06 motion,

keeping the explanation of his claims within the local page

limit. Starks alleged six instances of ineffective assistance

of trial counsel. Milwaukee County Circuit Judge Kevin E.

Martens addressed each of Starks's claims and denied the motion

on the merits.

¶17 On appeal the court of appeals declined to address the
§ 974.06 motion on the merits, contending that Starks could have

17
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raised his ineffective assistance of counsel claims in the

Cherry motion, failed to do so, and gave no reason for this

failure.

¶18 This court then granted Starks's petition for review.

When Starks's case was argued here, he was represented by

Attorney Tricia J. Bushnell and others.

¶19 In deciding the case, the court framed the issues as

follows:

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.
Starks, 349 Wis. 2d 274, ¶5.

¶20 The court, however, addressed an additional matter not

argued by the parties. The court said:

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,

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because the erroneous filing deprived the circuit
court of competency rather than jurisdiction, our
review of his case is appropriate.
Id., ¶4.

¶21 In the wake of the Starks opinion, this court received

two motions for reconsideration, one from Starks and one from

the State. Both parties took issue with the court's discussion

in the above-quoted paragraph 4. Both parties contended that on

the facts of the case, Starks was correct in challenging the

effectiveness of postconviction counsel and thus correct in

filing his § 974.06 motion in the circuit court.

Correspondingly, both parties contended that this court's

characterization of Starks's motion as a challenge to the

effectiveness of appellate counsel was incorrect and its

assertion that Starks should have filed a petition for a writ of

habeas corpus in the court of appeals was thus mistaken.

¶22 Starks's motion, filed by Attorney Robert Henak, read

in part:

Tramell E. Starks, by counsel, moves this Court
pursuant to Wis. Stat. (Rules) 809.14 & 809.64 for an
order striking paragraphs 4, 27, 30, 33-40, and that
portion of paragraph 31 asserting that Starks filed
his ineffective assistance of post-conviction counsel
claim in the wrong court. Starks requests that the
Court withdraw its opinion and order briefing
regarding whether State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App.
1996) (ineffectiveness claims challenging failure to
file post-conviction motion must be raised in circuit
court under Wis. Stat. § 974.06), should be overruled.
¶23 The State's motion, authored by Assistant Attorney

General Sarah K. Larson, read in part:

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[T]he State seeks to modify all paragraphs discussing
the role of Attorney Kagen, and clarify the proper
forum for Starks to bring his claims (i.e., paragraphs
4, 6, 29-40, 56, 60, 66, 74-75). Specifically, the
State seeks to clarify whether this court is
overruling State ex rel. Rothering v. McCaughtry, 205
Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), and/or
modifying State v. Knight, 168 Wis. 2d 509, 484
N.W.2d 540 (1992).
¶24 Starks raised a second issue in his motion for

reconsideration. He asked that the court reconsider its

assessment of his substantive claims "because that assessment

conflicts with controlling and apparently overlooked legal

standards."

¶25 The State also raised a second issue, namely, that

paragraph 41 of the Starks opinion should be modified because it

relied too heavily on language from Peterson v. State, 54

Wis. 2d 370, 381, 195 N.W.2d 837 (1972), which the State deemed

outdated because of a 1977 amendment to Wis. Stat. § 974.06(1).

¶26 Although the two motions for reconsideration are

denied, I believe the denial would benefit from discussion. In

my view, two of the three issues presented in the motions are

issues requiring clarification. However, none of these issues

requires the court to withdraw the Starks opinion, and none of

the issues presented offers any possibility that Tramell Starks

is entitled to a hearing in the circuit court, much less a new

trial.

¶27 By our denial of the motions for reconsideration, the

court affirms Starks's two convictions. The three issues

presented for reconsideration will be discussed in reverse
order.

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PARAGRAPH 41

¶28 Paragraph 41 of the Starks opinion explained that Wis.

Stat. § 974.06 was "designed to replace habeas corpus as the

primary method in which a defendant can attack his conviction

after the time for appeal has expired." Starks, 349

Wis. 2d 274, ¶41 (quoting Howard B. Eisenberg, Post-Conviction

Remedies in the 1970's, 56 Marq. L. Rev. 69, 79 (1972)). The

second sentence in paragraph 41 sought to reinforce this point

by quoting a passage from the Peterson case to the effect that a

defendant may file a § 974.06 motion only after he has

"exhausted his direct remedies[,] which consist of a motion for

a new trial and [an] appeal." Starks, 349 Wis. 2d 274, ¶41

(brackets in original) (quoting Peterson, 54 Wis. 2d at 381).

Unfortunately, the second sentence was misleading: In 1977 (five

years after the Peterson opinion), Wis. Stat. § 974.06(1) was

amended by adding the words, "After the time for appeal or post-

conviction remedy provided in s. 974.02 has expired" [a § 974.06

motion may be filed]. § 130, ch. 187, Laws of 1977. "Expired"
and "exhausted" are different concepts. "Expired" means that

the time for filing a § 974.02 motion or an appeal has run out

and thus these remedies are no longer available. "Exhausted"

means that at least one of these remedies was tried and did not

succeed and, as a result, they are no longer available. In

either event, the more limited remedy of a motion under § 974.06

may still be available. In essence, a § 974.06 motion does not

become available until the initial postconviction remedies are
unavailable.

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¶29 As the court noted in State v. Balliette, 2011 WI 79,

¶36, 336 Wis. 2d 358, 805 N.W.2d 334:

If a defendant did not file a motion for relief
under Wis. Stat. § 974.02 or a direct appeal, he is
not subject to the "sufficient reason" requirement of
§ 974.06(4). State v. Lo, 2003 WI 107, ¶44 n.11, 264
Wis. 2d 1, 665 N.W.2d 756 (citing Loop v. State, 65
Wis. 2d 499, 222 N.W.2d 694 (1974)).
¶30 Paragraph 41 did not intend to modify the longstanding

law stated above, but this clarification of the paragraph is in

no way helpful to Starks.3

SUBSTANTIVE CLAIMS

¶31 Starks made four claims that his postconviction

counsel (Kagen) was ineffective. These claims were addressed by

Judge Martens in the circuit court, and they were addressed,

point by point, in this court's Starks opinion. Starks, 349

Wis. 2d 274, ¶¶66-73.

¶32 In evaluating the effectiveness of postconviction

counsel, a reviewing court must determine: (1) whether counsel's

performance was deficient; and (2) whether counsel's deficiency,

if any, prejudiced the defendant. In this case, Attorney Kagen

made no motions as postconviction counsel but did make four

claims as appellate counsel in the court of appeals. None of

these four claims asserted that trial counsel was ineffective.

Thus, this court viewed its responsibility in the Starks case as

determining whether the four claims that Starks said Kagen

should have made as postconviction counsel were "clearly

3
See State v. Romero-Georgana, 2014 WI 83, ¶35, ___
Wis. 2d ___, ___ N.W.2d ___.

22
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stronger" than the four claims that Kagen did make as appellate

counsel, thereby rendering his performance constitutionally

deficient.

¶33 The court chose not to compare Starks's four claims

against the failure of postconviction counsel to file any claims

in the circuit court. An argument can be made that Attorney

Kagen should have brought a postconviction motion asking the

circuit court to pass upon the claims he raised for Starks on

appeal, and that argument is supported by Wis. Stat. § (Rule)

809.30(2)(h) ("The person shall file a motion for postconviction

or postdisposition relief before a notice of appeal is filed

unless the grounds for seeking relief are sufficiency of the

evidence or issues previously raised."). However, I believe it

would have been unreasonable for the court not to consider the

arguments that Attorney Kagen did make in the court of appeals

in evaluating the strength of the new arguments against the

strength of the old.

¶34 In adopting the "clearly stronger" test, this court
quoted from Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986):

"When a claim of ineffective assistance of counsel is based on

failure to raise viable issues, the [trial] court must examine

the trial court record to determine whether appellate counsel

failed to present significant and obvious issues on appeal."

(Emphasis added.)

¶35 Attorney Kagen did not fail to present significant and

obvious issues if the alternative issues he allegedly should
have raised are the issues that have been presented by Starks.

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Starks's issues are not clearly stronger than the issues argued

by Attorney Kagen.

¶36 To illustrate, Starks contends that Kagen was

ineffective for not claiming Attorney Steinle was ineffective

because Steinle did not call Mario Mills as a defense witness at

trial. Mills was originally charged, along with Starks, with

first-degree intentional homicide. Before trial, Mills pled

guilty to furnishing a firearm to Starks, a convicted felon.

This firearm was the weapon that was used by Starks to kill Lee

Weddle. Mills was not only present at the incident but also

present with Starks after the incident when Wayne Rogers called

Mills to inquire about Weddle. It is somewhat astonishing that

Starks accuses Attorney Steinle of ineffective assistance for

not calling Mills as a defense witness simply because Mills,

after his own plea and after Starks's conviction, signed an

affidavit that said, "I never seen Tramell Starks shoot anyone."

Whether this statement is literally true does not help Starks

because Mills admitted furnishing Starks with a firearm.
Mills's testimony would have confirmed one felony charge and

placed a gun in Starks's hand at the time of the shooting.

Surely, Attorney Steinle could not have expected Mills to admit

to the killing himself (when other witnesses asserted that

Starks was the shooter) or to concoct a story that would

exonerate Starks entirely. This court's Starks opinion makes no

claim that a separately charged witness's sworn allegations are

inherently unreliable.

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¶37 Starks's three other ineffective assistance of counsel

claims are equally speculative and unpersuasive. I see no basis

for additional consideration of Starks's substantive claims.

For instance, the fact that Starks's father and grandmother

assert that they did not see Starks talking with Trenton Gray at

a funeral about Starks's desire to kill Carvius Williams does

not mean the two men never discussed the subject. The circuit

court completely answered this contention: "There is not a

reasonable probability that the jury would have found it

reasonable to believe that both the defendant's grandmother and

his father had their eyes on the defendant's every single

movement on the day of the funeral."

¶38 Attorney Steinle was confronted with very difficult

facts, but he succeeded in persuading the jury to settle on a

reduced homicide conviction for Starks. Attorney Kagen was far

more realistic than Starks in trying to find some procedural

error in the trial than in trying to pin Starks's conviction on

Attorney Steinle's performance.
PROPER FORUM FOR FILING

¶39 I move now to the principal issue in the motions for

reconsideration.

¶40 In State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540

(1992), the defendant launched an attack on the effectiveness of

his appellate counsel by filing a § 974.06 motion in circuit

court. The circuit court denied the motion on grounds that it

did not have authority under § 974.06 to grant the relief
requested. Id. at 511. On review, a unanimous supreme court

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concluded that "to bring a claim of ineffective assistance of

appellate counsel, a defendant should petition the appellate

court that heard the appeal for a writ of habeas corpus." Id.

at 520 (emphasis added).

¶41 In Knight, there was no claim——at any point——that

Knight's trial counsel had been ineffective.

¶42 In State ex rel. Rothering v. McCaughtry, 205

Wis. 2d 675, 676, 556 N.W.2d 136 (Ct. App. 1996), the defendant

petitioned the court of appeals for a writ of habeas corpus,

pursuant to Knight, claiming that his appellate counsel was

constitutionally deficient in failing to seek withdrawal of his

guilty plea. Rothering's trial, postconviction, and appellate

counsel had been one and the same. Rothering, 205 Wis. 2d at

676. The court of appeals refused to grant the writ of habeas

corpus on grounds that the defendant was really challenging the

effectiveness of postconviction counsel and thus his claim for

relief, if any, should be filed in the circuit court: "We

conclude that a claim of ineffective assistance of
postconviction counsel should be raised in the trial court

either by a petition for habeas corpus or a motion under

§ 974.06, Stats." Id. at 681 (footnote omitted).

¶43 Unlike Knight, Rothering was a case in which the

defendant really was disputing the effectiveness of his trial

counsel by challenging the effectiveness of his postconviction

counsel in not going after trial counsel.

¶44 The Starks opinion did not dispute the correctness of
the quoted holdings in Knight and Rothering. The motions for

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reconsideration contend instead that this court mischaracterized

the stage of the proceeding in which the alleged ineffective

assistance took place. The motions are supported by this

court's decision in Balliette, 336 Wis. 2d 358, ¶32, in which

the court said: "When . . . conduct alleged to be ineffective is

postconviction counsel's failure to highlight some deficiency of

trial counsel in a § 974.02 motion before the trial court, the

defendant's remedy lies with the circuit court under either Wis.

Stat. § 974.06 or a petition for habeas corpus." Id. (citing

Rothering, 205 Wis. 2d at 679, 681).4

¶45 It must be acknowledged that no one on the court,

including the writer of this concurrence, recognized the

incorrectness of our characterization in the Starks opinion.

After all, the court gave Starks a full review of his claims,

evaluating the strength of the arguments made and discussed by

Attorney Kagen in Starks's prior appeal against the arguments

Starks later proposed, not the strength of the arguments that

Starks later proposed against the decision of postconviction
counsel not to make any arguments at all. The situation in

Starks's first appeal was exactly the same as the situation in

Knight's first appeal: "postconviction" counsel made no motions

in circuit court and went straight to appeal. The difference

4
See also State ex rel. Kyles v. Pollard, 2014 WI 38, ¶3,
___ Wis. 2d ___, ___ N.W.2d ___ (determining that "the court
where the alleged ineffective assistance of counsel occurred is
the proper forum in which to seek relief unless that forum is
unable to provide the relief necessary to address the
ineffectiveness claim").

27
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here is that Starks, unlike Knight, claimed in his § 974.06

motion that his postconviction counsel was ineffective because

of the failure to accuse his trial counsel of ineffectiveness.

¶46 One of the dilemmas exposed here is that any

postconviction counsel, no matter how able and conscientious,

becomes vulnerable to a subsequent § 974.06 motion for

ineffective assistance of counsel if he does not himself file an

ineffective assistance of counsel claim against the defendant's

trial attorney. Such a motion will require the circuit court to

evaluate the claim and may necessitate——depending upon the

defendant's skill in drafting his motion——a Machner hearing to

review the performance of postconviction counsel.

¶47 This is very reminiscent of the concerns expressed by

former court of appeals judge David Deininger in 2001:

In an increasing number of appeals from the
denial of motions brought under Wis. Stat. § 974.06,
especially those brought by pro se inmates, we are
seeing an assertion that the reason the newly raised
claims of error were not raised in previous
postconviction or appellate proceedings is that
postconviction or appellate counsel rendered
ineffective assistance by failing to present the
allegedly meritorious claims. In order to determine
whether the new claims are properly before the court,
the circuit court and/or this court must first
evaluate the "sufficiency" of the proffered reason,
which, as the majority's present analysis
demonstrates, will often require a consideration of
the merits of the underlying, newly asserted claim.
And, even if we or the circuit court conclude that the
claim has no merit, and thus that postconviction or
appellate counsel's failure to raise the claim did not
represent either deficient performance or prejudice to
the defendant, the defendant has essentially obtained
what § 974.06 and Escalona-Naranjo ostensibly deny:
the consideration of the merits of the defendant's

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newly asserted claim, for which sufficient reason has
not been shown for an earlier failure to raise it.

Further complicating the analysis is the fact
that many of the newly raised claims, as in this case,
involve an assertion that trial counsel was
ineffective for failing to make some request or
objection during trial or pre-trial proceedings, and
that subsequent counsel were ineffective for failing
to raise a claim of ineffective assistance of trial
counsel. Thus, on a record which contains neither a
trial court ruling on a now disputed issue, nor a
Machner hearing on why trial counsel failed to raise
the issue, we or the circuit court must ponder the
following question: Is there merit to the now raised
issue, such that trial counsel was deficient for not
making a request or objection regarding it, thereby
prejudicing the defendant, and thereby also rendering
postconviction and/or appellate counsel's performance
[deficient] and prejudicial for failing to assert
trial counsel's ineffectiveness, such that the
defendant has presented a sufficient reason for the
failure to raise the issue in earlier postconviction
or appellate proceedings, which would permit him to
now bring the issue before the court for a
consideration of its merits?
Lo, 264 Wis. 2d 1, ¶50 (quoting State v. Lo, No. 01-0843,

unpublished slip op., ¶¶56-57 (Wis. Ct. App. Dec. 28, 2001)

(Deininger, J., concurring)).

¶48 In effect, the court is inviting an ineffective

assistance of counsel claim——at some point——after every criminal

conviction.

¶49 In any event, no one on the court disputes the basic

correctness of the holdings in Knight and Rothering as to where

to file a petition for a writ of habeas corpus challenging the

effectiveness of appellate counsel or a § 974.06 motion

challenging the effectiveness of postconviction counsel, for not
challenging, or deficiently challenging, the alleged ineffective

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assistance of trial counsel. Consequently, I believe the court

should withdraw any language from the Starks opinion that

suggests otherwise.

¶50 For the reasons stated above, I believe the two

motions for reconsideration should be denied.

¶51 I am authorized to state that Justice ANN WALSH

BRADLEY joins this concurrence.

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