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Stern v. Meisner

United States Court of Appeals, Seventh Circuit

February 9, 2016

MICAH D. STERN, Petitioner-Appellant,
v.
MICHAEL MEISNER, Warden, Respondent-Appellee

 Argued January 4, 2016

Page 607

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-cv-01376-NJ -- Nancy Joseph, Magistrate Judge.

For Micah D. Stern, Petitioner - Appellant: Robert R. Henak, Attorney, Henak Law Office, Milwaukee, WI.

For MICHAEL MEISNER, Warden, Respondent - Appellee: Sara Lynn Shaeffer, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

OPINION

Page 608

Bauer, Circuit Judge.

Petitioner-appellant, Micah D. Stern (" Stern" ), appeals the district court's denial of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. A jury convicted Stern of one count of using a computer to facilitate a sex crime against a child, in violation of Wis. Stat. § 948.075(1r) (2011-12) (the " Statute" ). As a result, Stern is currently incarcerated in Wisconsin on a 25-year sentence, 10 years being served in custody and the remaining 15 years on extended supervision. Stern argues that his conviction is unconstitutional because the Wisconsin appellate court's unforeseeable interpretation of the belief and intent elements of the Statute violated his due process rights by depriving him of fair notice of such elements. Both the Wisconsin appellate court and the district court rejected Stern's argument. For the following reasons, we likewise reject Stern's argument and affirm the denial of the petition and the dismissal of the case.

I. BACKGROUND

In December 2009, Stern posted an ad entitled " Coach Seeking Boy" in the " Men Seeking Men" section of Craigslist. A police investigator working undercover posed as a 14-year-old boy named " Peter" in responding to Stern's ad. Stern and Peter continued to communicate via e-mail and Myspace, during which Peter repeatedly told Stern that he was 14 years old. Ultimately, they agreed to meet in the restroom of a McDonald's. When Stern appeared at the McDonald's at the agreed upon date and time, the police arrested him. Police searched Stern's car and found a box of unopened condoms and personal lubricant.

Stern was charged with one count of using a computer to facilitate a sex crime against a child, in violation of the Statute. The Statute states:

Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of § 948.02(1) or (2) is guilty of a Class C felony.

Wis. Stat. § 948.02 is Wisconsin's statutory rape law. Subsections (1) and (2) of § 948.02 delineate the classes of felonies for sexual assault of a child based upon the child's age. There is no intent element within these child sexual assault crimes; they are strict liability crimes. See, e.g., State v. Badzinski, 2014 WI 6, 352 Wis.2d 329, 337, 342, 843 N.W.2d 29 (2014) (the elements of a violation of Wis. Stat. ยง 948.02(1)(e) ...


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