United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
JOSEPH UNITED STATES MAGISTRATE JUDGE
Erickson, a prisoner in Wisconsin custody, seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Erickson was
convicted of armed robbery and receiving stolen property. He
was sentenced to twenty years of initial confinement followed
by ten years of extended supervision. Erickson alleges that
his conviction and sentence are unconstitutional. For the
reasons stated below, the petition for writ of habeas corpus
will be denied and the case dismissed.
was charged in Marinette County Case No. 2009CF131 with
burglary, felony theft, and criminal damage to property
arising out of a July 4, 2009 break-in at a home in Peshtigo,
Wisconsin. (State v. Erickson, Appeal Nos.
2012AP2749, 2012AP2750 (Wis. Ct. App. Mar. 25, 2013), Docket
# 1-1 at 36.) Erickson was charged in Marinette County Case
No. 2009CF111 with armed robberies of two Marinette
businesses. (Id.) Victims and witnesses of both
armed robberies told police the perpetrator brandished a gun.
(Id.) Erickson made his initial appearance with
Attorney Edward Burke, Jr. (Id.) The preliminary
hearing in both cases was scheduled for February 3, 2010.
(Id.) At this hearing, which ultimately resulted in
waiver of the proceedings, Judge Timothy Duket disclosed that
the county clerk was the mother of one of the robbery
victims. (Id.) The judge stated as follows:
As I understand it, and I haven't studied these
complaints very well, Kathy Brandt is in the courtroom, and
she is a long-term friend, and I think she's the mother
of one of the victims in this case. Talk to/her on occasion,
send her emails and things like that. I don't think that
matters one bit to me. I'm not going to treat the case
any differently than if it was somebody else's daughter,
but I thought that I should disclose that on the record, so
if there's any problems, I can be subbed against or asked
to recuse or whatever. Mr. Burke can have more time, if he
needs to discuss that with Mr. Erickson.
(Id.) Attorney Burke did not request more time or
ask for substitution or recusal. (Id.) Erickson
pleaded not guilty to all charges. (Id. at 37.)
Attorney Burke was relieved at Erickson's request on May
18, 2010 and Attorney Leonard Kachinsky was appointed by the
State Public Defender. (Id.) At a June status
conference, Judge Duket made the same disclosure to Attorney
Kachinsky that he made to Attorney Burke:
Mr. Kachinsky, I made this record with Mr. Burke, and
I'll make it with you again at this time regarding
somebody that works at the courthouse here. Her daughter was
the alleged victim of the gas station robbery. Her name is
Kathy Brandt. She is the county clerk, and I deal with her on
a number of different things, like elections and marriages,
and I send her emails, and you know, we see each other in the
So I said with Mr. Burke on board that I didn't have a
problem with it. I'm confident I can be fair and neutral,
and if there were a conviction, I wouldn't be sentencing
any different than if it was some teacher I don't know at
Marinette High School who had a daughter that was working at
the gas station at the time. . . . [T]hat's something I
want to make a record on so you're aware of it.
(Id.) The judge was not asked to recuse himself, nor
was substitution requested. (Id.) Pursuant to a
global plea agreement, Erickson pleaded no contest to one
count of armed robbery and an amended charge in Case No.
2009CF131 of misdemeanor receiving stolen property.
(Id.) The remaining counts were dismissed and read
in. (Id.) The State agreed to recommend a twenty
year sentence for armed robbery consisting of twelve years of
initial confinement and eight years of extended supervision,
with a concurrent sentence for receiving stolen property.
(Id.) The State also agreed not to charge Erickson
with attempted uttering of a forged writing, which arose out
of events at Stephenson National Bank on July 8, 2009.
plea hearing, the court discussed the elements of armed
robbery with Erickson. Referring to Wis JI-CRIMINAL 1480
(2009), the court described the “dangerous
weapon” component of the crime as follows:
The fifth element is at the time of the [robbery] the
defendant used or threatened to use a dangerous weapon. A
dangerous weapon is any firearm, whether loaded or not, any
device designed as a weapon and capable of producing death or
great bodily harm, any device or instrumentality which in the
manner it is used or intended to be used is calculated or
likely to produce death or great bodily harm.
(Id. at 38.) The court then went on to ask counsel
“[i]n this case we're talking firearm, aren't
we?” to which both counsel responded “Yes.”
(Answer, Exh. 11 Transcript of Aug. 6, 2010 Plea Hearing,
Docket # 10-11 at 19.) The parties agreed the complaint would
be used as the factual basis for the plea. (Docket # 1-1 at
38.) Erickson stated that he had reviewed the elements of
armed robbery, understood those elements, and did not have
any questions. (Id.)
sentencing, the prosecutor revealed that the gun used in the
robberies was not a firearm, but a BB gun. (Id.) Out
of a possible forty year maximum sentence on the armed
robbery conviction, Erickson was sentenced to thirty years of
imprisonment, consisting of twenty years of initial
confinement and ten years of extended supervision.
(Id.) He was also sentenced to nine months
imprisonment for misdemeanor receiving stolen property,
concurrent to the armed robbery sentence. (Id.)
filed a motion for postconviction relief, alleging both his
attorneys were ineffective and he was not properly advised of
the elements of armed robbery during the plea hearing.
(Id. at 38-39.) Specifically, Erickson argued that
Attorneys Burke and Kachinsky performed deficiently by
failing to request substitution or recusal of Judge Duket.
(Id. at 39.) Erickson also argued he was entitled to
plea withdrawal because he did not understand whether a BB
gun was a “dangerous weapon.” (Id.) The
court held a hearing pursuant to State v. Machner,
92 Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979) on
Erickson's motion. Attorney Burke testified that he did
not seek Judge Duket's recusal because he believed of the
two judges sitting in Marinette County, Judge Duket would be
more lenient. (Id.) He also testified that he
believed Judge Duket would hand down a more lenient sentence
to avoid having his impartiality questioned on appeal.
Kachinsky testified that he did not seek recusal or
substitution of Judge Duket because Judge Duket's
relationship was not to the victim, but to a relative of the
victim, and Judge Duket indicated that he felt he could be
fair and impartial. (Id. at 40.) Attorney Kachinsky
testified that he did not believe there was a basis to
request Judge Duket's recusal. (Id.) Attorney
Kachinsky further testified that he believed Judge Duket
would be more lenient than the other judge in Marinette
County. (Id.) Attorney Kachinsky testified that he
was not concerned Erickson had used a BB gun during the
robberies, because he ...