United States District Court, E.D. Wisconsin
J.P. Stadtmueller U.S. District Judge.
Before the Court is Darin Elliott Haizel’s petition for a writ of habeas corpus. (Docket #1). That petition is fully briefed (Docket #25, #28, #29), and the Court has reviewed the extensive record of Mr. Haizel’s underlying state court proceedings (see, e.g., Docket #8, #17, #18, #22).
Accordingly, the matter is ripe for resolution. The Court begins by providing background about Mr. Haizel’s underlying state court conviction. It will then analyze each of Mr. Haizel’s claims for relief.
1.1 The Facts Underlying Mr. Haizel’s Conviction
On March 19, 2010, Mr. Haizel picked up beer and liquor after he left work and began drinking when he got home. (Docket #19 at 2). Mr. Haizel listened to talk radio and later complained to his wife about the proposed passage of President Obama’s healthcare plan. (See Id. at 2-3). Mr. Haizel told his wife that he believed they may need to start stockpiling food. (Id.) He continued drinking, though, and his behavior became more erratic throughout the night. (Id.) At on e point, he expressed concern that he had not had his children baptized and sung a song that included the lyrics “I will see you in heaven.” (Id. at 3). He then told his wife that he was going to use the restroom and asked his wife to bring the children to the garage. (Id.) His wife, however, did not see him go to the restroom. (Id.) Instead, she saw him in a bedroom, where he was loading an ammunition clip and holding a gun in his waistband. (Id.) This prompted Mr. Haizel’s wife to take the children and leave the house. (See Id. at 2).
Shortly after leaving the house, Mr. Haizel’s wife flagged down a Washington County Sheriff’s Department deputy who passed her car on the road. (Id.) Mr. Haizel’s wife explained that she believed that Mr. Haizel was intoxicated, armed, and potentially suicidal. (Id.) She also told the deputy that she had called Mr. Haizel’s parents and requested that they go to the house and speak with Mr. Haizel. (Id. at 3).
Simultaneously, the deputy notified dispatch of the situation, eight total deputies reported to and set up a perimeter around Mr. Haizel’s house while Mr. Haizel’s parents were inside. (See id.) A lieutenant who was also on the scene called Mr. Haizel and told him to come out of the house. (Id.) Mr. Haizel made the lieutenant believe that he would shortly be leaving the residence with his parents. (Id.)
Shortly thereafter, Mr. Haizel’s parents exited the house. (Id.) His mother came out first, followed by his father, who was carrying a gun with him. (Id.) Mr. Haizel, however, did not exit. (Id.)
Accordingly, one of the deputies on scene-Deputy Kiley-approached the house and looked through a window. (Id.) Deputy Killey observed that Mr. Haizel was still in the house and was, in fact, retrieving another gun (an assault rifle). (Id.) Deputy Killey next saw the defendant walking through the residence holding the assault rifle and “clearing” rooms in a what Deputy Killey believed looked like a “tactical” manner. (Id.) Sensing danger, Deputy Killey moved away from the house and told the other law enforcement officers on the scene that Mr. Haizel was again armed. (Id.)
After Deputy Killey had moved away from the house, the officer heard a single gunshot from inside the house. (Id.) The officers did not take any further action at that time, because they were notified that Mr. Haizel was on the phone with his wife. (Id.) Five minutes later, the deputies heard approximately 19 shots from inside the house. (Id. at 4) They also heard the sound of breaking glass, leading them to believe that Mr. Haizel was shooting out the windows of his house. (Id.) Two minutes later, the deputies heard 6 more shots and the sound of more breaking glass. (Id.) Shortly thereafter, Deputy Killey observed a “direct muzzle flash” in one of the house’s windows and, believing he was under fire, took cover behind a tree. (Id.)
Presumably during the short time that Deputy Killey took cover, Mr. Haizel jumped out of a window and ran away from his house. (Id.) He attempted to enter a neighbor’s house before heading back toward his own. (Id.)
Meanwhile, another deputy on scene-Deputy Stolz-took a position on the south side of Mr. Haizel’s residence, near a wooded area. (Id.) Deputy Stolz heard someone approaching his position slowly and assumed it was Mr. Haizel. (Id.) Deputy Stolz planned to arrest the approaching person by surprise, but Deputy Stolz accidentally bumped the light on his weapon, giving away his position. (Id.) His position revealed, Deputy Stolz turned on his light, pointed his gun at the approaching person (revealed to be Mr. Haizel), and demanded that Mr. Haizel submit to arrest. (Id.)
Mr. Haizel, however, allegedly did not comply. (Id.) Deputy Stolz later reported that he saw Mr. Haizel pull a handgun from his waist and, in spite of an order to drop the weapon, point the handgun at deputy Stolz. (Id.) Mr. Haizel then allegedly fired the gun at Deputy Stolz,  after which Deputy Stolz returned fire. (Id.) By that time, another deputy had made his way to the area, and also fired several shots at Mr. Haizel. (Id.) At least two bullets struck Mr. Haizel (see Id. at 5), causing Mr. Haizel to slip down an embankment (see Id. at 4). Deputy Stolz and others followed Mr. Haizel down the embankment, and eventually Mr. Haizel relinquished control of his handgun. (Id. at 5).
The deputies then arrested Mr. Haizel and had him transported to a hospital, where his gunshot wounds could be treated. (Id.) Mr. Haizel had a bullet wound to his left shoulder, his left forearm, and his left index finger was severely damaged. (Id.) A blood draw taken at the hospital revealed that Mr. Haizel had a .243 BAC. (Id.)
After Mr. Haizel was transported to the hospital, the on-scene officers searched Mr. Haizel’s house. (Id.) They found shell casings to indicate that Mr. Haizel had fired twelve .45 caliber rounds and nineteen 7.62 mm. rounds in the house. (Id.) They also found multiple other guns and rounds in the house, along with evidence that Mr. Haizel had drank quite a bit of alcohol. (Id.)
1.2 Pre-Plea Process
As the Court will discuss further, Mr. Haizel ultimately pled guilty to two charges of reckless endangerment. Several important events preceded his plea.
1.2.1 Complaint Against Mr. Haizel
On the basis of Mr. Haizel’s actions, the Washington County District Attorney charged Mr. Haizel with five separate crimes:
Count 1:Attempt First Degree Intentional Homicide, in violation of Wis.Stat. §§ 940.01(1)(a), 939.50(3)(a), and 939.32, which carried a statutory maximum term of imprisonment of 60 years;
Count 2:First Degree Reckless Endangerment, Use of a Dangerous Weapon, in violation of Wis.Stat. §§ 941.30(1), 939.50(3)(f), and 939.62(1)(b), which carried a statutory maximum term of imprisonment of 12 years and 6 months;
Count 3:First Degree Reckless Endangerment, Use of a Dangerous Weapon, in violation of Wis.Stat. §§ 941.30(1), 939.50(3)(f), and 939.62(1)(b), which carried a statutory maximum term of imprisonment of 12 years and 6 months;
Count 4:First Degree Reckless Endangerment, Use of a Dangerous Weapon, in violation of Wis.Stat. §§ 941.30(1), 939.50(3)(f), and 939.62(1)(b), which carried a statutory maximum term of imprisonment of 12 years and 6 months; and
Count 5:Intentionally Point Firearm-Law Enforcement Officer, in violation of Wis.Stat. §§ 941.20(1m)(b) and 939.50(3)(h), which carried a statutory maximum term of imprisonment of 6 years.
(See Docket #17, Ex. 9).
1.2.2 Mr. Haizel’s First Motion to Dismiss Certain Charges
On April 30, 2010, approximately one month after being charged, Mr. Haizel moved to dismiss the reckless endangerment charges. (Docket #17, Ex. 1). Through his attorney, Bridget Boyle, Mr. Haizel argued that the charges against him lacked specificity. (Id. at 2). In particular, Mr. Haizel was concerned that the reckless endangerment charges failed to set forth the specific conduct on which each rested: none of the three charges listed a specific victim or series of shots, for instance, as a basis. (See Id. at 2-3).
1.2.3 Mr. Haizel’s Preliminary Hearing
Several days later, Mr. Haizel appeared for a preliminary hearing,  where he raised these same arguments. (Docket #17, Ex. 2). The district attorney responded that the complaint against Mr. Haizel was sufficiently specific:
the allegations in the complaint indicated that 12-plus shots with a .45 caliber semi-automatic handgun were fired from the residence, and 19-plus shots were fired from the residence using a high-powered semi-automatic assault rifle.… I feel we could have charged many more counts of first degree reckless endangerment. I think, technically, we could have charged one for every shot the defendant fired from that residence.… According to the defendant’s father…he told the defendant, “Why would you want to shoot police officers? They have families just like you.” Now, a reasonable inference from that statement is that the defendant just said to his dad that he was going to shoot the police officers.
He knew the police had surrounded the residence when he started shooting out of the residence.… I think a reasonable inference from the allegations of the complaint is the defendant would have shot any person, officer or not, inside that residence.
Now seeing none in the residence, he saw no police officers in the residence, he’s looking out the back window…of the residence and he starts shooting dozens of times out of the residence, out windows, through walls. Shooting bullets out of the residence, which he knows is surrounded by police.… He shot several rounds out the east window of the residence, he chose to shoot at least three rounds out the south side of the residence in the direction of the next-door neighbor’s occupied home, and he chose to fire out the west wall of the residence. Rounds came out of that, that west wall of the residence a few feet off the ground. And they came out of the residence in an area where officers had been stationed.
(Id. at 4:14-7:3). Mr. Haizel disputed the district attorney’s argument, maintaining that the complaint lacked specificity, because it failed to identify what conduct each separate reckless endangerment was based upon. (Id. at 7:19-9:22).
The Washington County Circuit Court (“the Circuit Court”) recognized some merit in Mr. Haizel’s position. (Id. at 10:7-11:3). For instance, the Circuit Court noted that, if the charges were to proceed to a jury, “some delineation would have to be made in the verdict forms to allow the jury to unanimously agree or disagree as to the individual counts that are alleged here.” (Id. at 10:25-11:3). The Circuit Court pointed out that the first element of the offense required danger to the safety of another human being-requiring more than generic endangerment of the public. (Id. at 11:4-15).
Nonetheless, the Circuit Court found probable cause for two of the three reckless endangerment charges. (Id. at 11:16-12:12, 13:14-14:16). It noted that one of the charges could rest on Mr. Haizel’s allegedly having shot at Deputy Stolz, but had difficulty identifying conduct upon which the other two charges could rest. (Id. at 11:16-12:12). The district attorney supplied possible bases: first, that Deputy Killey observed a muzzle flash and there were gunshots fired in his vicinity; and, second, several shots came out of the west wall where police officers had been stationed. (Id. at 12:13-24). The Circuit Court found the first rationale persuasive and-at least for the purpose of the preliminary hearing-agreed that it supplied probable cause for the second reckless endangerment charge. (Id. at 13:14-14:16). But the Circuit Court could not find probable cause for the third charge and, therefore, dismissed it. (Id. at 14:17-20).
So, following this hearing, Mr. Haizel faced one less reckless endangerment charge. The district attorney planned to file an information soon after and Mr. Haizel preserved his right to raise an argument based upon multiplicity/duplicity in the information. (See, e.g., id. at 15:4-11, 16:8-13, 18:5-8).
1.2.4 Information Against Mr. Haizel
Following the preliminary hearing, the district attorney filed an information against Mr. Haizel. (Docket #17, Ex. 5). That information is very similar to the complaint. (Compare Docket #17, Ex. 5 with Docket #17, Ex. 9). The most notable difference between the two documents is that the information noted that Count 4 had been dismissed by the Circuit Court. (See Docket #17, Ex. 5 at 2).
1.2.5 Mr. Haizel’s Second Motion to Dismiss Certain Charges
On May 7, 2010 (four days after the preliminary hearing), Mr. Haizel filed a second motion to dismiss. (Docket #17, Ex. 3). This time, he argued that the attempted homicide charge (Count 1) and one of the reckless endangerment charges (Count 2) were multiplicitous. (See Id. at 1) The basis for this argument was the Circuit Court having found at the preliminary hearing that one of the reckless endangerment charges must be based upon Mr. Haizel’s allegedly having shot at Deputy Stolz. (See id.) The same conduct formed the basis for the attempted homicide charge and, therefore, according to Mr. Haizel, that reckless endangerment charge could be charged only as a lesser included offense of the attempted homicide charge. (Id. at 2) (citing State v. Cox, 300 Wis.2d 236, 730 N.W.2d 452 (Ct. App. 2007)).
1.2.6 Hearing on Mr. Haizel’s Second Motion to Dismiss
On June 14, 2010, the Circuit Court held a hearing to address Mr. Haizel’s second motion to dismiss. (Docket #17, Ex. 4). At that hearing, the district attorney conceded the general point that Mr. Haizel made in his second motion to dismiss (specifically, that Mr. Haizel’s allegedly firing a gun at Deputy Stolz could not form the basis for separate charges of attempted homicide and reckless endangerment). (Id. at 3:11-16). The Circuit Court attempted to clarify this concession: “Count 1 [the attempted homicide charge] only relates…to Deputy Stolz; Count 2 [a reckless endangerment charge], if I understand everything, doesn’t arise from conduct directed at Deputy Stolz. Correct?” (Id. at 3:21-24). The district attorney generally agreed with the Circuit Court’s assessment, but with a caveat: “Our theory for attempted first degree intentional homicide was when [Mr. Haizel] was outside and fired the shot directly at Deputy Stolz, and Deputy Stolz returned fire. Prior to that there were multiple shots that were fired at the scene, and there were multiple law enforcement officers that were present on scene, including Deputy Stolz.” (Id. at 4:5-13). In sum, between the preliminary hearing and this hearing, the district attorney shifted his theory for Count 2. (See id.) At the preliminary hearing, the district attorney seemed to have asserted that Mr. Haizel was charged with reckless endangerment in Count 2 for having fired at Deputy Stolz after leaving his house; at this second hearing, he argued that Count 2 was based upon “the earlier shots.” (Id. at 4:14-16). That shift allowed the district attorney to avoid the multiplicity problem that Mr. Haizel raised in his second motion to dismiss.
But it brought back up the issue of specificity that Mr. Haizel had raised during the preliminary hearing, and he renewed his objection to Count 2 on that basis. (Id. at 5:2-7).
Again, the district attorney shifted from his earlier theory of the reckless endangerment charges. He now maintained that the (at least) two incidents of Mr. Haizel shooting his gun from within his house would support each of the two remaining reckless endangerment charges. (Id. at 6:6-7:13). Specifically, the district attorney argued that: (1) Mr. Haizel’s 19 rapid shots-which followed five minutes after his first shot-supported Count 2; and (2) Mr. Haizel’s remaining shots-the 12 shots that followed approximately two minutes after the 19 rapid shots-supported Count 3. (Id. at 6:6-7:13; 8:16-17).
This prompted the Circuit Court to refocus its analysis: it accepted that there were two separate instances of multiple shots being fired, but questioned whether anyone was in danger during either instance. (Id. at 8:18-9:11). The Circuit Court explained its concern:
My question is, in the charge of first degree reckless endangerment the State has to prove that somebody was in danger, don’t they? Isn’t that really what, factually, separates out any particular counts? That’s the problem I am having.
For instance, if he knows that officers are standing at the front door and wants him to come out and he turns around and fires 19 shots out the back door, the officer standing in front was never in danger. Do you think that that still constitutes first degree reckless endangerment if nobody is in proximity to where the shots are being fired?
(Id. at 8:25-9:11).
The district attorney did not concede that point, but noted that even if the Circuit Court’s analysis was correct, there were much different circumstances in this case. (Id. at 9:12-22). The district attorney pointed out that, in this case, law enforcement officers had surrounded Mr. Haizel’s house at the time when Mr. Haizel fired shots in multiple different directions from his house. (Id.)
That argument did not alleviate the Circuit Court’s concerns. The Circuit Court came back to its previous point:
But I mean, I will go back to my same analogy that if the house is surrounded by police officers except for one area that they overlooked, and all the shots are fired in that area, nobody is in danger. You can fire a hundred shots to a place where nobody is and nobody is actually in danger. In order for you to get a conviction of one or more of these counts, it seems to me you have to identify the person, or persons, you are alleging were in danger in each of these counts, as opposed to the number of shots or whether you can separate the shots out.
(Id. at 10:6-17).
The district attorney responded by pointing out that the jury instruction requires only danger “to another person.” (Id. at 11:7-9). And, because “the defendant knew that his house was surrounded by law enforcement, ” and “on multiple occasions…shot in multiple directions, ” he certainly endangered another person. (Id. at 11:25-12:4).
Again, this did not entirely alleviate the Circuit Court’s concerns. (See Id. at 13:22-14:15). The Circuit Court remained concerned about the possibility that “for some reason some of these shots are determined to have been shot through the roof or someplace where nobody is actually endangered, then you come back and say, well, we didn’t mean that one we meant a different one.” (Id. at 14:5-9).
Nonetheless, the Circuit Court did not dismiss the reckless endangerment counts, acknowledging that the issues it identified were better directed to the jury. (See Id. at 13:22-17:15). Accordingly, the Circuit Court denied Mr. Haizel’s second motion to dismiss and arraigned Mr. Haizel on the four charges in the information. (Id. at 17:19-18:23).
1.3 Plea Agreement and Hearing
The next event for which this Court has a record is Mr. Haizel’s October 27, 2010 plea hearing. (Docket #8, Ex. 8).
At that hearing, the parties agreed that Mr. Haizel would plead guilty to Counts 2 and 3 (the reckless endangerment charges) in exchange for dismissal of Counts 1 and 5 (the attempted homicide and intentional point firearm charges, respectively). (Id. at 2:25-3:4). The district attorney retained the ability to “read in” Counts 1 and 5. (Id.) Meanwhile, Mr. Haizel was free to argue whatever sentence he would like at sentencing, but the district attorney was constrained to recommending concurrent sentences on Counts 2 and 3. (Id. at 3:20-4:2). During the plea hearing, there was some question about whether the district attorney might agree to drop the firearm enhancement applicable to Counts 2 and 3, but ...