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Lynch v. McDermott

United States District Court, E.D. Wisconsin

October 8, 2019

PATRICK GERARD LYNCH, Petitioner,
v.
JENNIFER MCDERMOTT, [1] Respondent.

          DECISION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         1. Facts and Procedural History

         Patrick Gerard Lynch, wearing a mask and gloves and armed with a handgun, entered the Tobacco Outlet Plus in Wauwatosa, Wisconsin on the evening of August 22, 2011. (ECF No. 14-1 at 19.) Pointing the gun at the clerk, Lynch demanded that she give him all the store's money. (ECF No. 14-1 at 19.) Upon receiving the money, he fled the store and got into a car driven by his friend, Jimmie L. Perkins.

         A couple of weeks later, Lynch and Perkins attempted another armed robbery, this time of a gas station. Again, Perkins drove and Lynch, armed with a handgun, attempted the robbery. The employees of the gas station refused his demands for money, and one armed himself with a baseball bat and chased Lynch out of the store. Once outside, Lynch fired a shot into the air. (ECF No. 14-1 at 20.)

         Lynch and Perkins eventually admitted to eight other armed robberies of businesses in Milwaukee, Waukesha, and Ozaukee counties. (ECF No. 14-1 at 20.)

         Pursuant to a plea agreement, Lynch pled guilty. “In exchange for Lynch's guilty pleas to the two counts charged in the complaint, four additional counts of armed robbery and one additional count of attempted armed robbery would be read-in and the State would recommend an unspecified amount of prison time. Lynch was free to argue for a lesser sentence.” (ECF No. 1-1, ¶ 3.) Specifically, the Plea Questionnaire / Waiver of Rights form included the following handwritten notations as to the terms of the plea agreement: “Plea to charges - state will recommend prison up to court - defense is free to argue for lesser sentence.” (ECF No. 27-2 at 1.) At the plea hearing, the prosecutor recounted the agreement as follows: “The defendant, as I've indicated, will be pleading guilty to both counts in the complaint. The State will be recommending prison, leaving the amount up to the Court. There are five armed robberies read-ins.” (ECF No. 14-1 at 21.)

         A presentence investigation report that the defense had prepared noted that Perkins had received concurrent sentences of six years of initial confinement and four years of extended supervision as to each count. (ECF No. 1-1, ¶ 4.) The presentence report recommended a similar sentence for Lynch. (ECF No. 1-1, ¶ 4.)

         At sentencing, the prosecutor responded to the contention that it was appropriate for Lynch to receive a sentence comparable to Perkins:

He and Mr. Perkins are not similarly situated in that regard because Mr. Perkins did come forth with his confession at an earlier point prior to Mr. Lynch, and I can indicate that I did inform Judge Watts at the time of sentencing that Jimmy Perkins had agreed, if necessary, should Mr. Lynch have taken his case to trial, that he would testify against Mr. Lynch, and based on his cooperative response with the police and in fact defense counsel played a portion of the interview with Mr. Perkins for Judge Watts to show that the detective was commenting on Mr. Perkins' cooperation in providing information to the police.

(ECF No. 14-1 at 23-24.) The court imposed sentences for Lynch totaling 17-and-a-half years of initial confinement and seven-and-a-half years of extended supervision. (ECF Nos. 1-1, ¶ 6 6; 14-1 at 25-26.)

         Lynch appealed. He argued that, by noting that Perkins was not similarly situated with Lynch, the prosecutor breached the plea agreement to leave the length of any sentence up to the court. He further argued that his attorney was ineffective for not objecting to this alleged breach of the plea agreement.

         The court of appeals rejected these claims and found that the prosecutor was merely providing the context necessary so the court would be informed and able to craft a sentence in light of all the relevant factors. (ECF No. 1-1, ¶ 12.) It noted that under state law a plea agreement cannot bar a prosecutor from providing the court with relevant information. (ECF No. 1-1, ¶ 13 (quoting State v. Ferguson, 166 Wis.2d 317, 324, 479 N.W.2d 24 (Ct. App. 1991).) The court stated that the plea agreement did not prohibit a prosecutor “from commenting on the degree of seriousness of the offenses and the co-defendants' respective involvement and/or criminal history. The facts are the facts. The defendant's culpability is a relevant factor which may be considered at sentencing.” (ECF No. 1-1, ¶ 14.) Thus, the court concluded that the state did not breach the plea agreement and, consequently, trial counsel had no basis for objecting. (ECF No. 1-1, ¶ 15.)

         After the Wisconsin Supreme Court denied Lynch's petition for review (ECF No. 1-1 at 1), he filed a petition for a writ of habeas corpus with this court on June 8, 2015. On May 26, 2016, the court granted Lynch motion to stay these proceedings and hold his petition in abeyance so he could present in state court a new claim of ineffective assistance of appellate counsel. (ECF No. 32.)

         On July 27, 2018, the court granted Lynch's request to vacate the stay and proceed with his petition. (ECF No. 41.) The court gave Lynch until September 10, 2018, in which to file any amended petition. The court further ordered Lynch to file any additional brief in support of his original or amended petition no later than September 10, 2018. ...


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