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Lisko v. Melman

United States District Court, E.D. Wisconsin

December 5, 2016

RICHARD R. LISKO, Petitioner,
v.
PATRICK MELMAN, Superintendent, Respondent.

          ORDER

          J.P. STADTMUELLER, U.S. DISTRICT JUDGE

         Petitioner Richard R. Lisko (“Lisko”) filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, asserting that his state court conviction and sentence were imposed in violation of the Constitution. (Docket #1). After a jury trial in Fond du Lac County Circuit Court, Lisko was convicted of False Imprisonment, a violation of Wis.Stat. § 940.30, and First Degree Reckless Injury, a violation of Wis.Stat. § 940.23(1)(a). Lisko is currently confined to the Sanger B. Powers Correctional Center in Oshkosh, Wisconsin.

         On June 15, 2016, Lisko filed his brief in support of the petition. (Docket #14). On August 29, 2016, the Respondent filed its brief (Docket #19), and on October 10, 2016, Lisko filed his reply (Docket #20). The petition is now fully briefed and ready for disposition.

         In reaching its decision, the Court will begin by describing the factual background of this case. Thereafter, the Court will discuss the pertinent law and its application to the specific facts of the case. As discussed in detail below, the Court finds that none of Lisko's claims form the basis for habeas relief.

         1. BACKGROUND

         1.1. Circuit Court Proceedings

         The Wisconsin Court of Appeals described the facts of Lisko's case as follows:

Fond du Lac sheriff's deputy Pete Vergos responded to a report of a burglary in progress at Lisko's home. Vergos arrived to find Lisko, Joel Kennedy, Sr. (Kennedy), Kennedy's eighteen-year-old son, Joel Kennedy, Jr. (Joel or Joey), and Lisko's neighbor, Henry Haack, on Lisko's porch. Vergos observed that Joel was bleeding about his face, head, and ears. Lisko said his dog Bubba attacked Joel as he was breaking in. When Joel said that was true, Vergos searched and handcuffed him and put him in the squad car. The search yielded no burglarious tools, drugs, or anything suspicious.
¶3 In the squad Joel told Vergos a different story. He said he and his father were invited to Lisko's for the weekend, that shortly after their arrival, Lisko began accusing him of past break-ins, thefts, and property damage, which Joel denied. He punched Joel, knocked him to the floor, kicked him, then commanded Bubba to attack him. Over the next hour or so, Lisko bound Joel's ankles with a leather leash, dragged him outside, tied his feet to a post on the porch, and later, assisted by Kennedy, hoisted him up by his ankles and left him suspended from a porch rafter. Throughout this time, Lisko periodicallycommanded Bubba to attack him. Lisko freed Joel only when Haack arrived and demanded that Joel be cut down. When confronted, Lisko told Vergos he tied up Joel so he would not run away and to get to the bottom of the recent spate of thefts. Vergos released Joel from custody and called an ambulance.
Lisko was charged with false imprisonment and first-degree reckless injury. At his jury trial, Lisko asserted that his reasonable belief that Joel had burglarized his home justified the “citizen's arrest” and the manner and length of detention. When the State rested, Lisko moved to dismiss the reckless injury charge on grounds that it had not proved that he caused Joel great bodily harm. The court denied his motion, the jury found him guilty.

(Docket #12-7 at 227-228).

         The Circuit Court sentenced Lisko on count one to three years, consisting of one year of initial confinement and two years of extended supervision. On count two, which was to be served consecutively to count one, the circuit court sentenced Lisko to nine years, consisting of five years of initial confinement followed by four years of extended supervision. (Docket #12-2 at 25).

         1.2 Appellate Proceedings

         In a decision dated November 5, 2014, the Wisconsin Court of Appeals affirmed the judgment of conviction in an unpublished decision, concluding that: (1) the evidence was sufficient to support the jury's verdict; (2) the alleged prosecutorial misconduct did not deprive Lisko of a fair trial; and (3) the trial court did not erroneously fail to give the falsus in uno jury instruction or strike a juror for cause. (Docket #12-7). On November 20, 2014, Lisko petitioned the Wisconsin Supreme Court for review, claiming that the State deprived him of his right to a fair trial by: (1) obtaining his counsel's work product, (2) violating the court's sanction order, (3) failing to disclose exculpatory evidence that a third party ...


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