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Gage v. Richardson

United States District Court, W.D. Wisconsin

April 29, 2019

PATRICK J. GAGE, Petitioner,
v.
WARDEN RICHARDSON, Respondent.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Petitioner 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 for review.

         Gage 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.

         BACKGROUND

         The following facts are taken from the petition and the state court records provided by Gage and the state.

         A. Gage's arrest and trial

         In 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.

         Pending 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 the plaque.

         Gage 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.

         H.R.G. 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.

         H.R.G. 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.

         H.R.G. 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.

         H.R.G. 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.

         The 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 265-66.

         H.R.G. 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.

         Defense 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 179-80.

         In his 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.

         The 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.

         B. Sentencing

         Gage's 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 11.

         At the 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 supervision.

         C. Postconviction motion and evidentiary hearing

         Gage 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.

         1. Josh ...


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