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Starkweather v. Smith

July 23, 2009; as amended August 7, 2009

JAY STARKWEATHER, PETITIONER-APPELLANT,
v.
JUDY P. SMITH, WARDEN, OSHKOSH CORRECTIONAL INSTITUTION, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07 C 513-William C. Griesbach, Judge.

The opinion of the court was delivered by: Cudahy, Circuit Judge

ARGUED OCTOBER 22, 2008

Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.

Jay Starkweather was convicted of one count of first degree murder, four counts of attempted murder and one count of reckless endangerment. After his conviction became final, Starkweather commenced this habeas proceeding, claiming that he had been denied effective assistance of counsel. The district court denied Starkweather's petition. We affirm.

I. BACKGROUND

A. Facts

On June 6, 1995, Jay Starkweather set out on a shooting rampage that ended only after he was seriously injured in a gunfight with the police. Starkweather had grown increasingly paranoid, imagining that various acquaintances were conspiring to cheat his family out of his father's land. On the morning of the shootings, Stark-weather apparently became convinced that his friend Marty Austreng was part of the conspiracy. The two quarreled, and when the argument escalated Starkweather drew a gun and shot both Austreng and Wayne Kittleson, another friend who had been sitting nearby. Austreng managed to escape, and Starkweather went chasing after him.

Starkweather never managed to find Austreng. In the course of searching for him, Starkweather broke into a neighbor's apartment. The neighbor later testified that Starkweather was carrying a gun in each hand and that he looked "insane." Next, Starkweather went to a trailer owned by Ted Demery. Starkweather's neighbor testified that she heard a single gun shot coming from the direction of Demery's trailer. A sheriff's deputy who had just arrived on the scene also testified that he heard a single shot coming from the direction of Demery's trailer.

The police intercepted and exchanged fire with Starkweather at Demery's trailer. After the police shot and injured Starkweather, they entered the trailer and found Demery lying in a pool of fresh blood. Demery had died of a single gunshot to the face at close range. The gun with which he had been shot was lying at Starkweather's feet. A second gun was found near Starkweather's left hand.

B. Proceedings Below

A bifurcated trial was held in Wisconsin in 1996. Starkweather's trial counsel encouraged him not to testify in his own defense during the first phase of the trial-the "guilt phase"-telling him that his testimony would be more appropriate in the second, "responsibility phase." Based on this advice, Starkweather waived his right to testify during phase I, stating that he understood that his right to testify was absolute and that he understood the benefits and costs of exercising this right.

After he was found guilty at the conclusion of phase I of the trial, Starkweather protested that his decision to waive his right to testify during phase I was not fully voluntary, explaining:

with all due respect to my counsel and the proceedings and everything, I understand [counsel is] doing the best he can, and according to his wishes, I did not testify during the first phase against-it was against my wishes, but I followed his direction . . . There's been a lot of accusations hurled at me back and forth, and I'm willing to stand up and be responsible for what I believe is-for my actions. I am not afraid to do that, but what I'm afraid is I'm going to be shut out of my only chance in court. I'm terrified. I want to be able to know I'm going to be able to stand up and tell my side of the story.

As it happened, Starkweather was able to tell his side of the story, but not during the phase of the trial when the jury evaluated his guilt or innocence. During phase II, Starkweather testified that he shot Austreng and Kittleson in self-defense, that he did not kill Demery but instead had discovered him already-dead earlier that morning and that he, Starkweather, was attempting to surrender to the police when he was shot. At the conclusion of phase II, ...


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