United States District Court, W.D. Wisconsin
PATRICK J. GAGE, Petitioner,
WARDEN RICHARDSON, Respondent.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Patrick J. Gage was convicted, after a jury trial, of two
counts of first-degree sexual assault of a child and one
count of second-degree sexual assault of a child. State
v. Gage, Case No. 2009CF89 (Juneau County). He was
sentenced to 33 years of imprisonment to be followed by 21
years of extended supervision. Gage filed an unsuccessful
motion for postconviction relief in the trial court and a
direct appeal. The court of appeals rejected Gage's
arguments and the Wisconsin Supreme Court denied his petition
now seeks a writ of habeas corpus under 28 U.S.C. §
2254, challenging both his conviction and his sentence for
various reasons. The state filed an answer, with records from
the relevant state court proceedings, and the motion is fully
briefed. For the reasons set forth below, I conclude that
Gage has failed to establish that the Wisconsin Court of
Appeals unreasonably applied clearly established federal law
when it rejected his claims and affirmed his conviction.
Accordingly, his petition will be denied.
following facts are taken from the petition and the state
court records provided by Gage and the state.
Gage's arrest and trial
Juneau County Case No. 2009CF89, Gage was charged with six
counts of sexual assault. Four of the counts related to his
daughter, H.R.G., while H.R.G. was still a child. The first
two counts were alleged to have taken place at H.R.G.'s
grandmother's (Gage's mother's) house between
spring 2001 and May 2004, when H.R.G. was between nine and 12
years old. The third count was alleged to have taken place in
a cabin that was built behind the grandmother's house
when H.R.G. was 12 years old. The fourth count was alleged to
have occurred at a house where Gage lived in Lyndon,
Wisconsin, when H.R.G. was younger than 16 years old. The
other two counts charged Gage with repeated sexual assault of
A.L.P., the daughter of Gage's former girlfriend.
trial, Gage was out on a signature bond and was permitted to
live in the Cayman Islands. Without notifying his lawyer or
the court, he moved to his new wife's home country,
Canada. He subsequently failed to appear for a mandatory
court appearance and was later featured on an episode of the
television show “America's Most Wanted.” He
was ultimately found and brought back to the United States to
face trial. (He was charged with bail jumping, but that
charge was later dismissed after he was sentenced in the
sexual assault case.) The television show provided a plaque
commemorating Gage's capture that was displayed in the
Juneau County courthouse. The plaque included the
America's Most Wanted logo and the words “Capture
1121 Patrick Gage, ” in small print at the bottom of
proceeded to a three-day jury trial in November 2011. The
state called six witnesses: H.R.G., H.R.G.'s mother,
A.L.P., A.L.P.'s mother, and two detectives. Gage was the
only witness who testified on his behalf.
testified that she and her older brother, Josh, visited their
dad, Gage, at her grandmother's house on weekends, one
day during the week, and sometimes for entire summers. She,
Josh, and Gage slept in the basement of her grandmother's
house. Dkt. 10-13 at 233-34. The basement consisted of a
living room, a bedroom, and a sewing room. Id.
H.R.G.'s grandmother had offered H.R.G. a bedroom
upstairs, but H.R.G. chose to sleep downstairs with Josh and
Gage. Id. at 243-46. H.R.G. testified that her dad
was asleep usually before she or Josh fell asleep.
Id. at 247.
testified that Gage sexually assaulted her at her
grandmother's house “almost every time [she]
visited, ” and that she could not specify an exact
number of assaults because they happened “so
frequently.” Dkt. 10-13 at 196. The first incident that
she could remember, and which was the basis for count 1,
occurred downstairs in the bedroom at her grandmother's
house, after everyone had gone to sleep. Id. at
196-97. H.R.G. said that she was sleeping in a bed with her
dad and he started touching her breasts over her clothes and
then tried to put his penis in her mouth. Id. at
199-200. H.R.G. testified that she rolled away from him and
that they both went back to sleep without saying anything to
each other. Id. at 201. H.R.G.'s brother, Josh,
was asleep on the couch in the adjacent living room about 10
feet away at the time. Id. at 233. On
cross-examination, H.R.G. testified that the first time she
told anyone the details of this assault was in preparation
for trial because she had not remembered the details before
that. Id. at 236-37.
testified that the second assault (count 2) occurred at her
grandmother's house during the summer of 2001.
Id. at 204. That time, Gage assaulted her while they
were sleeping on the pullout couch in the living room
downstairs, while her brother Josh was in the adjacent
bedroom. Id. at 201. H.R.G. agreed on
cross-examination that her brother or grandmother could have
walked into the room at any time during the assault.
Id. at 240.
testified that the third assault (count 3) took place at a
cabin on her grandmother's property where she, Josh, and
Gage lived for a summer. Id. at 205-06. The cabin
had a bedroom, where Josh slept, a loft, where H.R.G. slept,
and a living room, where Gage slept. H.R.G. testified that
while Josh was in the bedroom, Gage climbed the ladder up to
the loft area and assaulted her. Id. at 208, 242.
Gage stopped when she started to cry and then they played
video games. Id. at 211-12. H.R.G. agreed on
cross-examination that sound traveled throughout the cabin.
Id. at 243.
fourth assault (count 4) occurred at a small house in Lyndon,
Wisconsin. H.R.G. testified that Josh was asleep in the
bedroom adjacent to the living room, when Gage came home
late, sat on the couch, and began touching her vagina over
her clothes. Id. at 222-23. H.R.G. kicked Gage and
he stopped touching her. Id. H.R.G. agreed on
cross-examination that the house was small and that if
someone had walked out of the bedroom, that person would have
seen whatever was happening on the couch. Id. at
also testified that she had seen what she thought was Gage
touching the other victim, A.L.P. while Gage and A.L.P. were
lying on a couch. Id. at 216.
counsel's strategy was to question H.R.G.'s
credibility. Counsel pointed out that there was no physical
evidence or witnesses to corroborate H.R.G.'s testimony
that Gage had assaulted her. Counsel argued that H.R.G.'s
lack of detail cast doubt on her allegations, as did the lack
of privacy in the houses in which H.R.G. said that she had
been assaulted. Dkt. 10-15 at 156, 162-64, 166, 184. In his
closing arguments, defense counsel pointed to Josh's
proximity to the assaults and to the fact that either Josh or
H.R.G.'s grandmother could have walked in at any moment.
Defense counsel also questioned why the state had not called
either Josh or the grandmother as a witness. Id. at
rebuttal closing, the prosecutor countered that the defense
could have called Josh as a witness. The prosecutor argued,
“If Patrick Gage wanted his son to testify, he could
have brought him here. . . He could have called his own son.
Maybe it's because Josh had nothing to say.”
Id. at 205.
jury found Gage not guilty of the first count of sexual
assault involving H.R.G. and not guilty on both counts of
sexual assault involving A.L.P. The jury convicted Gage on
counts 2, 3, and 4 relating to H.R.G.
presentence investigation report placed Gage in the lowest
risk categories for both general recidivism and violence
under the COMPAS actuarial assessment tool. But the
presentence investigation agent stated that no actuarial
instruments focusing on the risk of sex offense
recidivism had been administered and that such risk
assessments could be helpful. The agent then discussed
Gage's history, including that Canadian authorities had
dropped other charges of sexual abuse involving the niece of
Gage's current wife when Gage was extradited, that
Gage's younger sister had alleged that Gage had touched
her sexually when she was between the ages of 12 and 14, and
that Gage's ex-wife had alleged that he was emotionally
abusive, verbally abusive, manipulative, controlling, and had
insisted that she engage in unwanted sexual acts. Finally,
the agent noted that Gage denied any sexual abuse of the
victim, sister, and ex-wife, and Gage had given no opinion as
to why the daughter of his former girlfriend and niece of his
current wife would accuse him of sexual assault. The agent
concluded that Gage's denial was an “aggravating
factor, ” and that those in denial “are at higher
risk, and are not amenable to treatment.” Dkt. 10-10 at
sentencing hearing in January 2012, the prosecutor and
defense counsel made arguments about the presentence
investigation report and the COMPAS assessment in particular.
The judge noted that he was not giving the assessment much
weight because he thought Gage's continued denial of
wrongdoing and his moving to Canada without notifying the
court showed that Gage needed extensive supervision. Dkt.
10-16 at 79. The judge also stated that Gage had moved to
Canada likely to avoid prosecution. Id. at 67, 71.
The judge ultimately sentenced Gage to 33 years of
imprisonment to be followed by 21 years of extended
Postconviction motion and evidentiary hearing
filed a postconviction motion contending that: (1) trial
counsel was ineffective by failing to (a) interview and
present evidence from Josh Gage, (b) interview and present
evidence from Nancy Gage (Gage's mother), (c) seek
removal of the America's Most Wanted plaque commemorating
Gage's arrest; (2) Gage's sentence should be modified
because (a) of new information regarding his likelihood of
sex offense recidivism, (b) the court put undue weight on his
missing a court appearance after he had moved to Canada, and
(c) his sentence was unduly harsh. The circuit court held an
evidentiary hearing on the motion at which Josh Gage, Nancy
Gage, and Gage's trial counsel testified.