United States District Court, E.D. Wisconsin
RICHARD R. LISKO, Petitioner,
PATRICK MELMAN, Superintendent, Respondent.
STADTMUELLER, U.S. DISTRICT JUDGE
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,
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.
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
Circuit Court Proceedings
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
¶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).
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).
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 ...