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Erickson v. Hepp

United States District Court, E.D. Wisconsin

June 28, 2018

PATRICK ERICKSON, Petitioner,
v.
RANDY HEPP, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Patrick 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.

         BACKGROUND

         Erickson 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 courthouse.
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. (Id.)

         At the 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.)

         At 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.)

         Erickson 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. (Id.)

         Attorney 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 ...


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