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Holm v. Meisner

United States District Court, E.D. Wisconsin

September 30, 2016

VICTOR E. HOLM, Petitioner,
v.
MICHAEL MEISNER, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING CASE

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE

         Victor Holm filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in Forest County Circuit Court Case No. 2001CF122 on one count of first-degree intentional homicide as a party to a crime.[1] Holm was charged with the shooting death of Lance Leonard, who was buried in a shallow grave in the woods near Crandon, Wisconsin. On the third day of his jury trial, Holm pled guilty to first-degree intentional homicide in return for the state's sentence recommendation of life in prison, and agreement not to take a position respecting his eligibility for release. On September 24, 2002, Judge Robert A. Kennedy sentenced Holm to life in prison without the possibility of release. After Holm filed a postconviction motion and the circuit court conducted a Machner hearing, the Wisconsin Court of Appeals affirmed Holm's direct appeal and the Wisconsin Supreme Court denied his petition for a writ of certiorari. Holm filed his federal habeas petition in this district, then returned to the state courts to pursue a Wis.Stat. § 974.06 motion on various ineffective assistance of counsel claims that were not raised in his original postconviction motion. The circuit court denied the § 974.06 motion without an evidentiary hearing. Thereafter, the Wisconsin Court of Appeals found the claims procedurally barred and lacking merit. Nevertheless, the Wisconsin Court of Appeals remanded for the limited purpose of correcting the judgment of conviction to reflect a sentence of life in prison without eligibility for extended supervision.[2] For the reasons set forth below, the petition will be denied.

         Because of the number of appeals and documents filed by Holm and the “scattershot” approach he has taken to litigation, a discussion of the procedural history is critical to the resolution of this petition. See generally State v. Holm, 2012 WI.App. 106, ¶ 17. At each step of litigation, Holm has disregarded the procedural rules and standards of review. As a result, at times it is difficult to determine what Holm is arguing and what evidence he is relying upon. In any event, the court has reviewed all documents on file, mindful of the standards governing habeas review.

         Holm was charged on December 10, 2001, with first-degree intentional homicide, as party to a crime, in connection with Leonard's death. At that time, Attorney Robert Rusch was appointed to represented him. On March 28, 2002, Attorney Rusch filed pretrial motions to suppress statements, change venire, compel disclosure of confidential informant, and suppress evidence obtained pursuant to a defective search warrant. Judge Robert A. Kennedy denied the motions. Trial commenced on June 25, 2002. On the second day of trial, Holm indicated to his investigator and later Attorney Rusch that he was interested in exploring the possibility of a plea. By the third day, Holm indicated that he was prepared to put the plea on the record, and, that in exchange for the plea, the prosecutor agreed to take no position regarding Holm's eligibility for extended supervision. The court kept the jury, but instructed Holm and his attorney to go over the plea questionnaire form in the law library.

         After discussing the plea questionnaire form, the parties went back on the record with Attorney Rusch representing that he had reviewed the questionnaire with Holm and that Holm had signed the document. Holm confirmed his signature and stated that he had reviewed the document with his attorney “line by line.” He told the court that he understood that the trial would stop, that he would not be able to present mitigating circumstances or subpoena and/or cross-examine witnesses, that the judge was not bound by the plea agreement or recommendations, and that he faced mandatory life imprisonment without the possibility of parole. The record reveals that the District Attorney, Leon Stenz, told the court that he agreed to “remain silent and take no position with respect to extended supervision release.”

         During the colloquy, the court read the information to Holm as follows:

Court: The above named defendant on or about Tuesday, November 20, 2001, in the Town of Hiles, Forest County, Wisconsin, as party to a crime, did cause the death of Lance L. Leonard with intent to kill that person contrary to Section 940.01(1)(A). And this is a Class A felony. Mandatory penalty is life imprisonment. How do you plea to that?
Holm: Guilty.

         The court further explained the consequences of being charged as a party to the crime and the possible sentences:

Court: Now, I notice that you were careful to - with respect to the crime that was committed, careful to delineate that you helped others commit it. And that as a party to the crime. Well, notice the charging document alleges that you were a party to the crime. Sometimes that causes confusion. But under Wisconsin law a party to a crime is guilty of the crime and consequences and penalties, the maximums anyway, are the same as to whether you actually committed it or whether you were a party to committing it. You understand that?
Holm: Yes, I do, your Honor.
Court: Now, when we get into the sentencing phase, the court, meaning the judge, has some options. One of them is mandatory life imprisonment without the possibility of parole. Others are life imprisonment but with the possibility of parole at different periods of years and so that would have to come from the bench. Decisions would be made before sentencing or during sentencing rather, as to what would be done. So it's not clear at this point what your actual chance of getting out of prison would be. You understand that?
Holm: Yes, I do.
Court: If you had questions, did you ask Mr. Rusch?
Holm: I asked my attorney, yes.
Court: And received answers?
Holm: Yes.
Stenz: Judge, I just want to make one comment. We've been referring parole. As the court is aware, it's now called extended supervision. But I think the intent was the same.
Rusch: Your Honor, I would concur in that comment.
Court: Well, extended supervision isn't, I don't think, issued at the time of sentence, is it? Okay. All right. The language - here's the language that the statute has. This is for sentencing an offense such as this that calls for life imprisonment. Here's the options.
One, that you be eligible for release to extended supervision after serving 20 years.
Two, that you would be eligible for release to extended supervision on a date set by the court. And that would have to be of more than 20 years.
Three, that you would not be eligible for release to extended supervision at all.
So that's what the judge will have to decide at the time sentence is pronounced. Do you have any questions up to this point?
Holm: No.

         Holm acknowledged that he was pleading guilty to party to the crime of murdering someone and that the murder was intentional. His attorney represented to the court that he believed that Holm was “knowingly and intelligently waiving his constitutional rights and his trial rights.” The court found a sufficient factual basis to support the charge. Holm had no disagreement with his attorney's statements and said that he was satisfied with the legal representation he had received up that point. Holm confirmed that nothing affected his thinking process and that he received no threats or promises to get him to plead guilty. In exchange for the state taking no position on sentencing, Holm was required to testify truthfully against any co-defendant or co-conspirators in Leonard's murder. Holm advised the court that he understood the plea bargain, and the court found that the plea was freely and voluntarily made.

         The court dismissed the jury and accepted the plea, then went back on the record and confirmed with Holm that his attorney had explained the concept of party to the crime. Holm confirmed that he had, and the court proceeded to read the jury instructions to Holm regarding party to the crime, aiding and abetting, and conspiracy.

         During the sentencing hearing on September 24, 2002, District Attorney Stenz recounted the agreement-that the defendant would testify truthfully and the district attorney would remain silent and take no position respecting “extended supervision.” In light of the agreement, District Attorney Stenz refused to make a statement so as to not say something that could be interpreted as taking a different position. Meanwhile, Attorney Rusch argued that Holm should be afforded the possibility of parole. Prior to sentencing Holm to life in prison without eligibility for “release to extended supervision, ” Judge Kennedy commented as follows:

Court: I think the authorities believe that you pulled the trigger. And from what I can see, I think you did too. But that's irrelevant as to the sentencing because you're implicated in this up to your eyeballs. Clearly you did conspire with Drews and Socha and Elizabeth Mrazik to kill Lance.

         After hearing from the victim's family, the court sentenced Holm to life in prison because it was “necessary to protect the public from further criminal activity.” Following the entry of judgment, Holm's postconviction counsel, Attorney James R.

         Lucius, filed a notice of intent to pursue postconviction relief and subsequently moved to withdraw Holm's plea on the ground that: (1) trial counsel misinformed Holm regarding the availability of the coercion defense; (2) failed to explain party to a crime properly- suggesting that if he admitted to being a party to the crime the court would not be able to rely on evidence that he pulled the trigger and sentence him as if he were the actual triggerman; and (3) failed to object to the State's alleged breach of the plea agreement. Holm stated in his affidavit that the decision to enter the guilty plea was the direct result of being informed by defense counsel on the second day of trial that he would not be allowed to introduce evidence that supported his claim to have been an unwilling and coerced participant in the incident and that he would not be sentenced as the “actual triggerman.” According to Holm, he would not have entered into a plea had he received the correct information from counsel.

         The circuit court conducted a Machner[3] hearing on January 6, 2004. Attorney Lucius argued that Holm felt compelled to enter the guilty plea because of counsel's ineffectiveness. To that end, Holm waived his attorney/client privilege with respect to Attorney Rusch, who was called to testify.

         During the hearing, Attorney Rusch testified that he was prepared to present the defense of coercion-their “primary articulated defense” but that the district attorney may have objected to its admissibility because Thomas Socha was charged as a co-conspirator. However, when asked if he ever told Holm that they could not raise the coercion defense, Attorney Rusch replied “absolutely not.” As Attorney Rusch explained:

Rusch: Mr. Holm has a very strong mind set. He has his own agenda.
Whether or not he understood is a difficult question. I can say that he is an intelligent individual, but I think he brings to these set of facts his own strong opinions on how things ought to be, and it is difficult for him to subordinate his deeply perceived viewpoint on how things ought to be with my instructions as to the law.
Stenz: Did you agree with the defendant's decision to enter a plea?
Rusch: Well, I don't know if I agree or disagree. I recognize that it is entirely his decision, and it is not my role to argue him out of it or into it. It's my role to see to it that he fully understood his decision.
Stenz: Did you, in fact, recommend that he not ...

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