Brown v. Suter

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

MICHAEL K. BROWN,

Petitioner,

Case No. 22-CV-934-JPS-JPS

v.

CHRISTINE SUTER,

ORDER

Respondent.

1. INTRODUCTION

Before the Court is Petitioner Michael K. Brown’s (“Petitioner”)

amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

ECF No. 8. The Court screened the amended petition under Rule 4 of the

Rules Governing Section 2254 Proceedings and found that all three of

Petitioner’s grounds for relief survived screening. ECF No. 11. Respondent

Christine Suter1 (“Respondent”) answered the amended petition, ECF No.

14, which, under the Court’s screening order, triggered a briefing schedule

in support of and in opposition to the amended petition, ECF No. 11 at 8.

All briefs have now been submitted, ECF Nos. 19, 21, 22, and the matter is

ripe for the Court’s review. For the reasons set forth below, the Court finds

that the amended petition is without merit and, therefore, will deny it. The

action will accordingly be dismissed with prejudice.

1The Clerk of Court is directed to substitute Christine Suter for Warden

Peter Jaeger as the respondent on the docket. See ECF No. 21 at 1 n.1 (“Brown is

currently in the custody of Warden Suter at Chippewa Valley Correctional

Treatment Facility. She is therefore the proper Respondent.”).

2. FACTUAL AND PROCEDURAL BACKGROUND

On June 19, 2018, Petitioner entered an Associated Bank in East Troy,

Wisconsin with his hand over his face, threw a bag on the counter, and

demanded that a teller fill the bag with money. State v. Brown, Nos.

2020AP552-CR & 2020AP553-CR, 2021 WL 8649427, at *1 (Wis. Ct. App.

May 5, 2021). Petitioner then told the tellers to wait in the bathroom for five

minutes before coming out. Id. Witnesses told police that a tan or gold Buick

was in the vicinity of the bank at the time of the robbery, that a male jumped

into the back of the car, and a female driver drove away. Id. Witnesses

provided a partial license plate number, eventually leading police to

identify the vehicle as belonging to Petitioner’s great-aunt. Id. Petitioner’s

sister later saw photos from the bank robbery and identified Petitioner as

the robber. Id. Another person who knew Petitioner also identified him

from photos of the bank robbery. Id.

On July 6, 2018, Petitioner was charged in Walworth County Case

No. 2018CF000347 with one count of robbery of a financial institution as a

party to a crime. Id.2 Following his arrest for that charge, Petitioner was

charged in a separate complaint in Walworth County Case No.

2018CF000371 with one count of attempted escape. Id.3

2See also State v. Brown, No. 2018CF000347, available at

https://wcca.wicourts.gov/caseDetail.html;jsessionid=20A3258A2AB4A8EE49D4

C0DDC5A60BE8.render4?caseNo=2018CF000347&countyNo=64&mode=details

(last visited Mar. 18, 2024).

3State v. Brown, No. 2018CF000371, available at

https://wcca.wicourts.gov/caseDetail.html;jsessionid=20A3258A2AB4A8EE49D4

C0DDC5A60BE8.render4?caseNo=2018CF000371&countyNo=64&mode=details

(last visited Mar. 18, 2024).

Petitioner pled guilty to both charges. Id. At the plea hearing, the

circuit court conducted a colloquy with Petitioner. Id.; ECF No. 14-6. The

court confirmed that Petitioner reviewed the plea questionnaire and waiver

of rights form with his counsel, Attorney James Duquette (“Attorney

Duquette”), “very, very carefully,” and that Petitioner only signed the form

after he had “sufficient time to go through it, understand it, and agree with

it.” ECF No. 14-6 at 2, 4. The court further confirmed that Petitioner was

able to read and understand the form and that he “underst[oo]d everything

that[] [was] going on.” Id. at 5. The court reviewed both plea offers that

Petitioner had received and confirmed that Petitioner had discussed both

offers with Attorney Duquette, and that he had chosen to reject one and

accept one of his own free will. Id. at 2–4. The court then assured itself that

Petitioner had not had any alcohol, medication, or controlled substances in

the twenty-hours prior to the hearing. Id. at 5.

Next, the court reviewed the waiver of rights form with Petitioner,

which addressed Petitioner’s “constitutional rights surrounding [his] right

to trial.” Id. Petitioner stated that he understood that he had the right to a

trial and that he could have the right to a jury trial in which all twelve jurors

would have to agree unanimously whether he was guilty. Id. Petitioner

confirmed that he understood that he did not have to plead guilty and could

remain silent, take the matter to trial, and “forc[e] the state to prove it.” Id.

at 5–6. He also confirmed that he understood that he had the right to remain

silent at trial, as well as the rights to testify, present evidence, be

represented by counsel at trial, and confront and cross-examine witnesses.

Id. at 6. Petitioner stated that he understood the maximum penalties of his

charges, that the court would not be bound by any recommendations and

could give the potential maximum penalties, and that he was not confused

by any of the court’s questions throughout the colloquy. Id. at 9–11. He also

confirmed that he was satisfied with how Attorney Duquette handled the

case and that Attorney Duquette did not talk him into his guilty plea. Id. at

11.

Most pertinent to Petitioner’s post-conviction proceedings and the

instant amended petition, the court next addressed the elements of the

crimes to which Petitioner was pleading guilty. Id. at 6–7. The court noted

that the state would need to prove the elements of the crimes beyond a

reasonable doubt and referred to jury instructions attached to the plea

questionnaire. Id. Those jury instructions were “1479 for robbery, . . . a

second one of party to the crime, and a third one for escape from custody.”

Id. The court confirmed that Attorney Duquette had reviewed the jury

instructions with Petitioner. Id. The court also confirmed that Attorney

Duquette had “discuss[ed] the police reports as related to each element”

with Petitioner so that he “understood what the state had to prove and

whether they could do that.” Id. at 7. Petitioner stated that he agreed, “based

on [his] knowledge of the police reports and what happened and what the[]

elements [of the crimes to which he was pleading guilty] are, that the state

could prove [him] guilty beyond a reasonable doubt of . . . both crimes.” Id.

After finding Petitioner’s plea to be “knowing, voluntary, [and]

intelligent,” the court reviewed the charging documents with Petitioner

and then asked Petitioner to state his plea thereto. Id. at 12. With respect to

the charge of robbery of a financial institution as a party to a crime in

Walworth County Case No. 2018CF000347, the court asked Petitioner,

how do you plead that you did, on Tuesday, June 19, 2018, in

the village of East Troy, Walworth County, Wisconsin, as a

party to the crime, you did, by use of force or threat of

imminent force, take money from an individual or the

presence of an individual of a financial institution, namely,

the Associated Bank, commonly called robbery of a financial

institution? What is your plea?

Id. at 12–13. Petitioner responded “Guilty.” Petitioner confirmed that he

reviewed the criminal complaint containing this charging language and

that it was true. Id. at 13. A similar exchange took place with respect to the

escape charge in Walworth County Case No. 2018CF000371. Id. at 13–14.

At Petitioner’s sentencing hearing, both the State and Attorney

Duquette—multiple times—referred to the robbery charge to which

Petitioner pled guilty as “robbery of a financial institution.” ECF No. 14-7

at 7–8, 14, 14–15, 18, 22, 23, 24. At one point, Attorney Duquette specifically

distinguished the crime of robbery of a financial institution from robbery.

Id. at 14–15 (“And the community . . . should not tolerate the robbery of

financial institutions. I think it’s safe to say that financial institutions

deserve some element of additional respect . . . . And that’s probably why

it’s a separate crime than simply robbery. It’s not a gas station or a liquor

mart; it’s a completely separate offense.”).

The State argued at the sentencing hearing that Petitioner’s bank

robbery was premeditated. Id. at 8. Petitioner and his accomplice had

driven to the bank the day before the robbery because they were looking

for a bank “sort of out in the middle of nowhere,” and they watched videos

on bank robberies to plan the crime. Id. at 8–9. In his remarks, Attorney

Duquette described Petitioner as having a high school education and post-

high school training and certifications, as well as employment experience

in “trade, mechanical, [and] technical repair work.” Id. at 13. In his own

statement to the court, Petitioner stated that he was “sincerely apologetic to

the bank personnel.” Id. at 29. At the conclusion of the sentencing hearing,

the circuit court sentenced Petitioner to twenty years on the robbery of a

financial institution charge, bifurcated as eight years of initial confinement

and twelve years of supervision, and two years consecutive on the escape

charge, bifurcated as one year of initial confinement and one year of

supervision. Id. at 37; Brown, 2021 WL 8649427, at *1.

Petitioner filed a postconviction motion seeking to withdraw his

guilty plea to the robbery of a financial institution charge on the ground

that he did not understand the nature of the charge. Brown, 2021 WL

8649427, at *1. Specifically, he alleged that at the plea colloquy, the circuit

court relied upon the jury instructions attached to the plea questionnaire to

ascertain whether Petitioner understood the nature of the offense, but that

those jury instructions were incorrect. Id. at *2. Attorney Duquette attached

the jury instruction for armed robbery, while Petitioner was charged with

robbery of a financial institution. Id. Petitioner argued that “he did not

understand that the State must prove that the victim was a financial

institution.” Id. (internal bracketing omitted).

The circuit court held a hearing on the motion. Id.; ECF No. 14-8.

Attorney Duquette testified at the hearing. ECF No. 14-8 at 5. Attorney

Duquette testified that he researched the charge of robbery of a financial

institution but that he was unable to locate a jury instruction “right on point

for this particular offense.” Id. at 7–8. In the time since Petitioner’s

sentencing, however, Attorney Duquette’s office updated its jury

instruction binders, and he was able to find one “exactly on point” prior to

the postconviction motion hearing. Id. at 8–9. Attorney Duquette testified

that he did not recall whether he gave Petitioner jury instructions towards

the beginning of his representation, but that he “probably [did] not”

because there wasn’t one on point. Id. at 9. Instead, he likely discussed “the

elements of the charge based on the pleadings” and “what the statute

sa[id]” with Petitioner, though he does not believe that he gave Petitioner a

copy of the statute. Id. at 9, 18. Attorney Duquette did not recall whether he

discussed “the element that the offense occurred at a financial institution”

with Petitioner because “a vast majority of [thei]r discussion was focused

on the element about force or threat of force.” Id. at 10. However, he testified

that he and Petitioner “certainly talked about the institution and the

context, that [the crime] had occurred at a bank,” though he did not recall

“any discussion . . . about the fact that [it] . . . would be an issue at trial.” Id.

at 10, 12. Attorney Duquette testified that he and Petitioner reviewed the

criminal complaint at the outset of his representation. Id. at 10.

Attorney Duquette testified that Petitioner never asked him whether

Associated Bank was a financial institution or for clarification on what a

financial institution was. Id. at 12–13. Attorney Duquette believed that

Petitioner would not have difficulty understanding terms like “financial

institution.” Id. at 13. He also testified that he “believe[d]” that when he

went over the plea questionnaire and jury instructions with Petitioner, he

went through his typical practice of placing a copy of “the criminal

complaint or information next to it and on the table in court so [they] c[ould]

reference that language as well.” Id. at 16. In this case, he explained that the

criminal complaint and information contained the language “financial

institution” in the heading of the charge. Id. During their meeting, Attorney

Duquette had Petitioner go through each of the elements for armed robbery

and initial them to indicate that they were discussed, but no element that

the victim was a financial institution was written in or initialed. Id. at 20.

However, Attorney Duquette testified that he believed that Petitioner

would have known that Associated Bank was the victim. Id. at 21–22.

The court ordered further briefing on specific state case law, id. at

31–35, and the hearing reconvened several weeks later once that briefing

had concluded, ECF No. 14-9. At the reconvened hearing, the court

acknowledged that its plea colloquy was defective. ECF No. 14-9 at 3.

Nonetheless, the court denied the motion. Id. at 6. The court explained that

the only difference between the armed robbery and robbery of a financial

institution charges was “the kind of victim,” but that “[t]he gravamen of the

offense is the robbery.” Id. at 4. It reasoned that Petitioner knew what he

was pleading to because it was “clear from the criminal complaint.” Id. And

at the plea colloquy, the court had confirmed that Petitioner had reviewed

the criminal complaint with Attorney Duquette. Id. at 5. Further, the

element that the victim was a financial institution was part of “the factual

basis” to which Petitioner agreed when he pleaded guilty. Id. at 4.

Specifically, when the court asked for Petitioner’s plea, it expressly

incorporated the element that the victim was a financial institution and

referred to the charge as “robbery of a financial institution.” Id. at 4–5. Based

on the entire record, the court found there to be no prejudice because

Petitioner knew “exactly what he was pleading to.” Id. at 5–6.

Petitioner appealed. Brown, 2021 WL 8649427. On review, the

Wisconsin Court of Appeals affirmed the circuit court’s holding. Id. at *4.

The Wisconsin Court of Appeals agreed that the totality of the record

supported a finding that Petitioner understood the charge at issue,

including the element that the victim must be a financial institution. Id. at

*3. This was so, the court explained, for several reasons. Id. First, Attorney

Duquette testified that Petitioner recognized Associated Bank—a financial

institution—as the victim. Id. Attorney Duquette also testified that he

reviewed the criminal complaint, which specifically and explicitly charged

the crime of robbery of a financial institution, with Petitioner. Id. Petitioner

told the circuit court that he reviewed and understood the complaint, which

refers to Associated Bank specifically as a financial institution. Id. Petitioner

stated that the facts in the criminal complaint were true. Id. When the court

asked Petitioner to state his plea, the court included the element that the

victim be a financial institution and referred to Associated Bank as a

financial institution. Id. Further, on the party to a crime jury instruction, the

handwritten words “robbery of a financial institution” appear, though this

element was not written on the robbery jury instruction. Id. at *4. Petitioner

initialed next to this addition on the party to a crime jury instruction. Id.

The plea questionnaire also listed the charge as robbery of a financial

institution. Id. And, finally, Petitioner apologized to “bank personnel” at

sentencing. Id.

Petitioner petitioned to the Wisconsin Supreme Court, which denied

review on September 14, 2021. State v. Brown, 991 N.W.2d 696 (Wis. 2021).

Petitioner thereafter timely filed the instant § 2254 action. His amended

petition seeks habeas relief on the following grounds: (1) his defense

counsel at sentencing attached the incorrect jury instruction to the plea

questionnaire rendering Petitioner’s plea not intelligently entered because

he did not understand the essential elements of the offense (“Ground

One”); (2) his defense counsel was ineffective by attaching the wrong jury

instruction to the plea questionnaire and by failing to discuss the elements

of the crime with Petitioner (“Ground Two”); and (3) the circuit court failed

to meet its mandatory duties during the plea colloquy (“Ground Three”).

ECF No. 11 at 3 (citing ECF Nos. 8, 9). In his brief, Petitioner clarifies that

Grounds One and Three are really the same ground. ECF No. 19 at 14. Thus,

the Court will refer to the claim underlying Grounds One and Three as

simply “Ground One,” and it will refer to the ineffective assistance of

counsel claim as “Ground Two.”

3. LEGAL STANDARD

State criminal convictions are generally considered final. Review

may be had in federal court only on limited grounds. To obtain habeas relief

from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the

petitioner to show that the state court’s decision on the merits of his

constitutional claim was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the United

States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133,

141 (2005). The AEDPA undoubtedly mandates a deferential standard of

review. The Supreme Court has “emphasized with rather unexpected

vigor” the strict limits imposed by Congress on the authority of federal

habeas courts to overturn state criminal convictions. Price v. Thurmer, 637

F.3d 831, 839 (7th Cir. 2011). The burden of proof rests with the petitioner.

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing Woodford v. Visciotti, 537

U.S. 19, 25 (2002)). The relevant decision for this Court to review is that of

the last state court to rule on the merits of the petitioner’s claim. Charlton v.

Davis, 439 F.3d 369, 374 (7th Cir. 2006) (citing McFowler v. Jaimet, 349 F.3d

436, 446 (7th Cir. 2003)).

A state-court decision runs contrary to clearly established Supreme

Court precedent “if it applies a rule that contradicts the governing law set

forth in [those] cases, or if it confronts a set of facts that is materially

indistinguishable from a decision of [the Supreme] Court but reaches a

different result.” Brown, 544 U.S. at 141. Similarly, a state court

unreasonably applies clearly established Supreme Court precedent when it

applies that precedent to the facts in an objectively unreasonable manner.

Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).

4. ANALYSIS

4.1 Ground One

In Ground One, Petitioner primarily argues that the Wisconsin Court

of Appeals’ decision was contrary to, and an unreasonable application of,

Supreme Court precedent regarding the requirement that a guilty plea be

knowing, intelligent, and voluntary to satisfy due process. ECF No. 19 at 3;

see also 28 U.S.C. § 2254(d)(1). He briefly argues as well that the Wisconsin

Court of Appeals’ determination of the facts was unreasonable in light of

the evidence presented. ECF No. 19 at 10; 28 U.S.C. § 2254(d)(2).

The principles surrounding whether a plea is knowing, intelligent,

and voluntary are “well settled.” Virsnieks v. Smith, 521 F.3d 707, 714 (7th

Cir. 2008). A plea cannot be voluntary “in the sense that it constituted an

intelligent admission that [the defendant] committed the offense unless the

defendant received ‘real notice of the true nature of the charge against him,

the first and most universally recognized requirement of due process.’”

Henderson v. Morgan, 426 U.S. 637, 645 (1976) (quoting Smith v. O’Grady, 312

U.S. 329, 334 (1941)). “Whether a plea was entered knowingly and

voluntarily is determined from ‘all of the relevant circumstances

surrounding it.’” Virsnieks, 521 F.3d at 714 (quoting Brady v. United States,

397 U.S. 742, 749 (1970)).

The Court initially takes up Petitioner’s second argument—that the

Wisconsin Court of Appeals’ determination of the facts was unreasonable

in light of the evidence presented—because “overcom[ing] the state court’s

factual determination that [Petitioner] knew” that the victim must be a

financial institution for purposes of his charge for robbery of a financial

institution is “a threshold matter.” Id. at 715. The Court defers to the state

court’s factual findings if they are adequately supported by the record, and

it can also “rely on any resolution of factual disputes fairly inferred from

that record.” Cruz v. Miller, No. 92-3141, 1993 WL 83427, at *4 (7th Cir. Mar.

23, 1993) (citing Sumner v. Mata, 449 U.S. 539, 547 (1981); Andersen v. Thieret,

903 F.2d 526, 529–30 (7th Cir. 1990); and Bryan v. Warden, Ind. State

Reformatory, 820 F.2d 217, 221 (7th Cir.), cert. denied, 484 U.S. 867 (1987)).

Petitioner has failed to show that the Wisconsin Court of Appeals’

decision was based on an unreasonable determination of the facts in light

of the evidence presented. Petitioner focuses on the fact that the trial court

conceded that its plea colloquy was defective. ECF No. 19 at 10. However,

even in cases in which the charging documents did not explicitly state an

element of the crime, courts have found a plea to be knowing, intelligent,

and voluntary if “strong suggestions to th[e] effect” of the missing element

are contained in the charging documents and statements made on the

record in court, such that the petitioner “must have known” the elements

of the offense. Virsnieks, 521 F.3d at 715. Petitioner’s case far exceeds even

that threshold.

Specifically, the record shows that Petitioner is educated and has

technical employment experience. Attorney Duquette testified that he

believed that Petitioner understood what the term “financial institution”

means and that a financial institution was the victim in this case. Attorney

Duquette testified that he reviewed the criminal complaint with Petitioner.

The facts surrounding the crime, as set forth in the criminal complaint that

Petitioner reviewed with Attorney Duquette and then affirmed were true,

describe the crime of robbery of a financial institution and use the term

“financial institution” multiple times, including to describe Associated

Bank. This is the same charge with which Petitioner had been charged since

the beginning of his criminal cases. Petitioner also stated that he had

reviewed the plea questionnaire with Attorney Duquette, which again

listed the charge of robbery of a financial institution. Although the financial

institution element was not written in on the jury instructions for the

robbery charge, Petitioner placed his initials next to a handwritten note

stating “robbery of a financial institution” on the party to a crime jury

instruction, which he had reviewed with Attorney Duquette.

Prior to the robbery, Petitioner specifically researched bank

robberies and scouted the area for the appropriate bank to rob,

demonstrating his intent to target a financial institution. At sentencing,

Petitioner apologized to bank personnel, which confirms that he

understood the identity of the victim of the crime. Finally, and also at

sentencing, Attorney Duquette specifically distinguished robbery of a

financial institution from robbery, going so far as to refer to it as a

“completely separate offense” due to the identity of the victim, and both

Attorney Duquette and the State referred to the charge as “robbery of a

financial institution” multiple times. On the evidence presented to support

these facts and inferences, the Wisconsin Court of Appeals’ decision was

not unreasonable.

The Court turns next to Petitioner’s argument that the Wisconsin

Court of Appeals’ decision was contrary to, and an unreasonable

application of, Supreme Court precedent. Petitioner relies heavily on

Henderson to support his argument that the Wisconsin Court of Appeals’

decision was contrary to clearly established Supreme Court precedent. ECF

No. 19 at 6 (citing Henderson, 426 U.S. 637) (arguing that Henderson presents

“materially indistinguishable facts” to Petitioner’s case).

In Henderson, the defendant, who possessed “unusually low mental

capacity,” was originally charged with first degree murder, but he pled

guilty to second degree murder—an offense for which he was never

formally charged. 426 U.S. at 645, 647. The Court reviewed the record and

found that there was no explanation of the second degree murder charge

(and, specifically, the requisite intent element) by the judge, nor was there

“a representation by defense counsel that the nature of the offense ha[d]

been explained to the accused” or grounds for the presumption that defense

counsel “explain[ed] the nature of the offense in sufficient detail to give the

accused notice of what he is being asked to admit.” Id. at 647. There was

further nothing in the record showing that the defendant stipulated to or

admitted his intent, nor did he make a “factual statement or admission

necessarily implying that he had such intent”; indeed, at his sentencing

hearing, his attorney instead argued that the defendant “meant no harm”

to the victim. Id. at 643, 646. The Court expressly declined to decide

“whether notice of the true nature, or substance, of a charge always requires

a description of every element of the offense” and “assume[d] it does not.”

Id. at 647 n.18 (emphasis added). But because “intent is such a critical

element of the offense of second-degree murder,” the Court found that due

process required notice under the circumstances of that case. Id.

Contrary to Petitioner’s arguments, the facts here—apart from

alleging the same constitutional violation—could not be more different

from those in Henderson. As noted, Petitioner was charged from the outset

of his criminal cases with robbery of a financial institution, and he

benefitted from a post-high school education and technical employment

experience. The element at issue was set forth in the criminal complaint,

which Petitioner confirmed he reviewed with Attorney Duquette,

understood, and affirmed as true. Petitioner further initialed next to the

handwritten addition of the element at issue on the party to a crime jury

instruction. And far from neglecting to make any statement “necessarily

implying” the allegedly omitted element, Petitioner apologized to bank

personnel at his sentencing. Henderson, 426 U.S. at 646.

Simply put, “[t]he unavoidable inference from this evidence is that

[Petitioner] did understand” that he committed, and was being charged for,

the crime of robbery of a financial institution. Cruz, 1993 WL 83427, at *4;

see also Pigg v. Hanks, 103 F.3d 133 (7th Cir. 1996) (facts distinguishable from

Henderson where the petitioner “never expressly negated” the allegedly

omitted element); Moore v. Armontrout, 928 F.2d 288, 292 (8th Cir. 1991)

(facts distinguishable from Henderson where the petitioner “responded

affirmatively when asked if he had discussed the charges with his attorney,

if he was satisfied that his attorney had all the necessary facts to give

adequate advice, if he had enough time to discuss the charges with his

attorney, if he had been advised of his legal rights, if he was satisfied with

the services of his attorney, and if he understood the consequences of a

guilty plea and the range of punishment for the crimes to which he was

pleading guilty”).

Nor was the Wisconsin Court of Appeals’ decision an unreasonable

application of Supreme Court precedent. Under Henderson, “the due

process requirement of real notice could be satisfied either by ‘an

explanation of the charge by the trial judge, or at least a representation by

defense counsel that the nature of the offense has been explained to the

accused.’” Harvey v. McCaughtry, 11 F.3d 691, 696 n.8 (7th Cir. 1993) (citing

Henderson, 426 U.S. at 647) (emphases added); see also Hicks v. Franklin, 546

F.3d 1279, 1285 (10th Cir. 2008) (“In the ordinary case, a correct statement

of the law from the trial judge will assuage any doubts that a defendant has

not received notice of the nature of the charges against him.”).

As to the former, “giving real notice” does not “require[] the court to

describe each element of the offense.” Harvey, 11 F.3d at 695; see also

Henderson, 426 U.S. at 647 n.18. Instead, a trial judge’s “description of the

charges [that] set[s] forth the elements” is sufficient to provide a defendant

with the constitutionally required notice of the nature of the charges against

him. Harvey, 11 F.3d at 695–96 & n.8. Indeed, even a description that “d[oes]

not recite the technical elements of th[e] offense,” but nonetheless provides

a “less formal explanation of the charge” is sufficient. Cruz, 1993 WL 83428,

at *5. Here, as the Wisconsin Court of Appeals recognized, the circuit court

recited all elements of the robbery of a financial institution charge, and

affirmatively stated that Associated Bank is a financial institution, when it

described the charge as stated in the criminal complaint and asked

Petitioner for his plea. Thus, for this reason alone, the Wisconsin Court of

Appeals’ decision was not an unreasonable application of U.S. Supreme

Court precedent.

As the Wisconsin Court of Appeals further found, there was also

“ample evidence” that, at a minimum, Attorney Duquette explained the

nature of the robbery of a financial institution charge “in sufficient detail”

to give Petitioner notice of the charge to which he was pleading guilty.

Harvey, 11 F.3d at 693 n.3; Henderson, 426 U.S. at 647. Again, the Henderson

Court expressly declined to rule that the constitutionally required notice

“always requires a description of every element of the offense” and

“assume[d] it does not.” 426 U.S. at 647 n.18 (emphasis added). Thus, the

Wisconsin Court of Appeals’ ruling that a defense attorney’s explanation of

the nature of a charge in sufficient detail is adequate—even if that

explanation lacks a description of each specific element—is neither an

incorrect nor unreasonable application of clearly established Supreme

Court precedent.

Lower courts have adhered to this holding.4 The Eleventh Circuit

explains, for example, that due process requires “[a]t the very least” an

explanation of the “‘critical elements’ of the charged offense, such as the

element defining the requisite intent” for a murder charge, which was at

play in Henderson. Gaddy v. Linahan, 780 F.2d 935, 945 (11th Cir. 1986) (citing

Henderson, 426 U.S. at 647 n.18). The same is true for complex charges that

are “not readily understandable by a layman,” for charges that are assessed

against defendants with “minimal intelligence,” or when “the sentence to

be imposed is substantial.” Id. (citing Nash v. Israel, 707 F.2d 298, 302 n.6 (7th

Cir. 1983) and Alessi v. United States, 593 F.2d 476, 480 (2d Cir. 1979)).

Outside of these circumstances, “a rote reading of the indictment or

charging document may be sufficient to put a defendant on notice of the

elements of the charge . . . .” Id. (citing Paulson v. Black, 728 F.2d 1164, 1166

(8th Cir.), cert. denied, 469 U.S. 931 (1984)).

4Circuit, rather than Supreme Court, precedent does not in and of itself

constitute “clearly established” federal law for purposes of habeas corpus, but it

nevertheless may help guide the inquiry. See Lewis v. Zatecky, 993 F.3d 994, 1000

(7th Cir. 2021) (“For purposes of section 2254(d), the only relevant law is that

which is ‘clearly established Federal law, as determined by the Supreme Court of

the United States[.]’ . . . . Our own decisions, as well as those of other circuits or

state courts, are informative only insofar as they may shed light on our

understanding of the authoritative Supreme Court precedents.”) (quoting 28

U.S.C. § 2254(d)(1)).

In Nash, the Seventh Circuit explained that several factors are

relevant “in a case in which the defendant stated at the guilty plea

proceeding that he fully understood the charge, but later claimed that he

had not,” which is what occurred here. 707 F.2d at 302. Those factors

include (1) that the defendant received a copy of the charging document

specifying the allegedly omitted element and (2) that the trial judge read

the charging document to the defendant at the guilty plea proceeding. Id.

The First Circuit has also noted that, in some cases, a petitioner may receive

a “more effective explanation” of the charge from his counsel through a

description of the charge than through a “formal incantation of technical

elements.” McGuirk v. Fair, 622 F.2d 597, 599 (1st Cir. 1980).

The robbery of a financial institution charge is not a highly complex

charge, such as the murder charges most often analyzed in cases applying

Henderson. The element that the victim must be a financial institution is

readily capable of being understood by a layman, particularly an educated

person, such as Petitioner. The element further is not critical to the charge

in the same way that intent is critical to a murder charge. As the circuit court

noted, the underlying conduct is still robbery, with the simple addition that

the victim be a financial institution. Petitioner reviewed the criminal

complaint, confirmed that he understood it, and affirmed its truth, and the

trial court read the charge—including the allegedly omitted element—as set

forth in the criminal complaint to Petitioner prior to receiving his guilty

plea. Petitioner also reviewed the charging documents with Attorney

Duquette, apparently thoroughly, which is buttressed by his initials as to

the addition of “robbery of a financial institution” to the party to a crime

jury instruction. Accordingly, the Wisconsin Court of Appeals did not

unreasonably apply clearly established Supreme Court precedent for the

additional reason that Attorney Duquette explained the nature of the

charge to Petitioner in sufficient detail, including most importantly here,

through the charging documents. For all these reasons, Ground One is

denied.

4.2 Ground Two

The parties vehemently dispute whether Ground Two—Petitioner’s

ineffective assistance of counsel claim based on Attorney Duquette’s

attachment of the incorrect jury instructions and failure to discuss with

Petitioner that the victim must be a financial institution—is procedurally

defaulted. ECF No. 21 at 12; ECF No. 22 at 3–4. At a minimum, the circuit

court construed Petitioner’s postconviction motion as raising an ineffective

assistance of counsel claim. ECF No. 14-8 at 6. The question is therefore

whether Petitioner raised the claim to the Wisconsin Court of Appeals and

the Wisconsin Supreme Court. ECF No. ECF No. 21 at 13 (citing ECF Nos.

14-2, 20-1). The Court need not wade into the procedural default issue,

however, because the argument fails on its merits for the same reasons that

Ground One fails.5

“A party asserting ineffective assistance of counsel bears the burden

of establishing two elements: (1) that his trial counsel’s performance fell

below objective standards for reasonably effective representation, and

(2) that counsel’s deficiency prejudiced the defense.” Blake v. United States,

723 F.3d 870, 879 (7th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668,

5Even if Petitioner did exhaust the claim and the Wisconsin Court of

Appeals neglected to consider it, the Court would be constrained to review the

circuit court’s decision on the matter and apply AEDPA deference to that decision

in lieu of a de novo review. See Charlton, 439 F.3d at 374 (citing McFowler, 349 F.3d

at 446).

687–88 (1984), United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011), and

Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009)).

With respect to the first element, “[c]ounsel need not be perfect,

indeed not even very good, to be constitutionally adequate.” Dean v. Young,

777 F.2d 1239, 1245 (7th Cir. 1985). The Court has already determined that

Attorney Duquette’s communication of the robbery of a financial institution

charge to Petitioner was constitutionally adequate and that the Wisconsin

Court of Appeals did not render a decision contrary to, or that

unreasonably applied, clearly established Supreme Court precedent. The

same is true for the circuit court’s decision, which rested largely on the facts

that (1) Petitioner testified at his plea hearing that he had read and

understood the criminal complaint, which specifically included the

allegedly omitted element, and (2) the circuit court recited the element to

Petitioner when reading the charge out loud at the plea hearing. ECF No.

14-9 at 4–6. Further, as the Seventh Circuit reasoned as to a petitioner

making a similar deficient counsel argument despite his own admissions

on the record, “a motion that can succeed only if the defendant committed

perjury at the plea proceedings must be rejected out of hand . . . .” United

States v. Merrill, 23 F.4th 766, 770 (7th Cir. 2022) (quoting United States v.

Peterson, 413 F.3d 825, 827 (7th Cir. 2005)).

As to the second element, “post hoc assertions from a defendant

about how he would have pleaded but for his attorney’s deficiencies” are

by themselves insufficient to show prejudice, or a “reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty.” Id.

(quoting Lee v. United States, 582 U.S. 357, 369 (2017)); Lee, 582 U.S. at 363.

As noted, and contrary to his instant contentions, the circuit court’s finding

that Petitioner understood the charge to which he was pleading guilty and

that his plea was knowing, intelligent, and voluntary—in light of the

“contemporaneous evidence” before it, which the Court has already

analyzed—was not contrary to or an unreasonable application of clearly

established Supreme Court precedent. Lee, 582 U.S. at 369. Accordingly,

Ground Two is denied.

5. CONCLUSION

In accordance with the foregoing analysis, Petitioner’s amended

petition for a writ of habeas corpus, ECF No. 8, will be denied. Under Rule

11(a) of the Rules Governing Section 2254 Cases, “[t]he district court must

issue or deny a certificate of appealability when it enters a final order

adverse to the [habeas] applicant.” To obtain a certificate of appealability,

Petitioner must make a “substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), by establishing that “reasonable

jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further,”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)). In light of the well-settled principles discussed above,

no reasonable jurists could debate whether Petitioner’s amended petition

has merit. The Court will, therefore, deny Petitioner a certificate of

appealability.

Accordingly,

IT IS ORDERED that the Clerk of Court is DIRECTED to substitute

Christine Suter for Warden Peter Jaeger as the respondent on the docket;

IT IS FURTHER ORDERED that Petitioner’s amended petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254, ECF No. 8, be and the

same is hereby DENIED;

IT IS FURTHER ORDERED that this action be and the same is

hereby DISMISSED with prejudice; and

IT 1S FURTHER ORDERED that a certificate of appealability be and

the same is hereby DENIED.

The Clerk of Court is directed to enter judgment accordingly.

Dated at Milwaukee, Wisconsin, this 18th day of March, 2024.

\

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PLY fea waddle:

J. RP. Stach, ueller

U.S) Disttict Judge

This Order and the judgment to follow are final. A dissatisfied party may

appeal this Court’s decision to the Court of Appeals for the Seventh Circuit

by filing in this Court a notice of appeal within thirty (30) days of the entry

of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline

if a party timely requests an extension and shows good cause or excusable

neglect for not being able to meet the thirty-day deadline. See Fed. R. App.

P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask this

Court to alter or amend its judgment under Federal Rule of Civil Procedure

59(e) or ask for relief from judgment under Federal Rule of Civil Procedure

60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed

within twenty-eight (28) days of the entry of judgment. The Court cannot

extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal

Rule of Civil Procedure 60(b) must be filed within a reasonable time,

generally no more than one year after the entry of the judgment. The Court

cannot extend this deadline. See id. A party is expected to closely review all

applicable rules and determine what, if any, further action is appropriate in

a case.

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