Lechner, Randy J. v. Frank, Matthew J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3426
RANDY J. LECHNER,
Petitioner-Appellant,
v.
MATTHEW J. FRANK, SECRETARY,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 1062—Thomas J. Curran, Judge.
____________
ARGUED MAY 21, 2003—AUGUST 22, 2003
____________
Before FLAUM, Chief Judge, and POSNER and MANION,
Circuit Judges.
MANION, Circuit Judge. Randy Lechner was convicted in
state court pursuant to his plea of no contest to second-
degree reckless homicide, homicide by intoxicated use of
vehicle, causing great bodily harm by intoxicated use of ve-
hicle, causing injury by intoxicated use of vehicle, and two
counts of second-degree recklessly endangering the safety
of another. A Wisconsin state court then sentenced him to 30
years’ imprisonment. Following rejection of his petition for
state post-conviction relief, Lechner sought federal habeas
relief. The district court denied his writ and we affirm.
2 No. 02-3426
I.
Randy Lechner, a prisoner in Wisconsin custody, is seek-
ing a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On
December 4, 1994, Lechner drove his vehicle across the
center line of a freeway to pass another vehicle. He collided
head-on with a northbound vehicle driven by Jan Pinney.
The collision caused significant injuries to Jan and to her
daughter, Heather Pinney, and it killed her seven-year-old
son Robert Pinney. Lechner was arrested later that day and
taken into custody. A post-arrest blood test showed that
Lechner had a blood alcohol concentration of 0.142%, a level
above the legal limit for operating a motor vehicle.
Lechner entered no contest pleas to the following offenses:
(1) second-degree reckless homicide, in violation of Section
940.06 of the Wisconsin Statutes; (2) homicide by intoxicated
use of a vehicle, in violation of Section 940.09 (1)(a) of the
Wisconsin Statutes; (3) causing great bodily harm by
intoxicated use of a vehicle, in violation of Section
346.63(2)(a) of the Wisconsin Statutes; and (4) two counts of
second-degree recklessly endangering the safety of another,
in violation of Section 941.30(2) of the Wisconsin Statutes.
At the sentencing hearing, the Wisconsin circuit court
sentenced Lechner to the maximum sentence on each count,
with the sentences to run consecutively, for a total prison
sentence of 30 years. After the sentence was imposed,
Lechner filed a post-conviction motion in Wisconsin state
court challenging his convictions and his sentence. In
challenging his sentence, Lechner argued that the circuit
court violated his right to due process by relying on inac-
curate information contained in his pre-sentence report
("PSR"). Lechner also argued that his separate convictions
and consecutive sentences for reckless homicide and
homicide by intoxicated use of a vehicle constituted double
jeopardy. Lechner received no relief in state court, State v.
No. 02-3426 3
Lechner, 576 N.W.2d 912 (Wis. 1998), and timely filed this
habeas petition. The district court denied his petition and he
appeals.
II.
We first address Lechner’s contention that the state court
violated his due process rights by relying on erroneous in-
formation in his pre-sentence report. In reviewing a district
court’s ruling on a petition for a writ of habeas corpus, this
court reviews the district court’s findings of fact for clear
error and its rulings on issues of law de novo. Rittenhouse v.
Battles, 263 F.3d 689, 695 (7th Cir. 2001). In his habeas
petition, Lechner bears the burden of showing that the Wis-
consin Supreme Court rejected his constitutional challenges
in a manner that was “contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or
“was based on the unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing.” 28 U.S.C. § 2254(d)(1)-(2). See Williams v. Taylor, 529
U.S. 362, 402-03 (2000); Washington v. Smith, 219 F.3d 620,
627 (7th Cir. 2000). Finally, issues of fact found by a state
court are presumed to be correct unless the petitioner rebuts
this presumption with clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Williams v. Parke, 133 F.3d 971, 973 (7th
Cir. 1997).
Against this backdrop we consider Lechner’s argument
that his rights to due process were violated because the trial
court erroneously relied on information in his pre-sentence
report that indicated that Lechner had four prior criminal
convictions when, in fact, he had just one prior conviction
4 No. 02-3426
1
and three prior arrests. The parties do not dispute that the
criminal record information before the state sentencing
court in Lechner’s case was inaccurate. The error apparently
resulted because the FBI-CIB record for Lechner included
only his prior arrests and the officer preparing the PSR
simply assumed the arrests were convictions.
A defendant who requests re-sentencing due to the use of
inaccurate information at the original sentencing must show
both that information before the sentencing court was
inaccurate and that the sentencing court relied on
the inaccurate information in the sentencing. United States
v. Tucker, 404 U.S. 443 (1972); United States ex rel. Welch
v. Lane, 738 F.2d 863, 865 (7th Cir. 1984). Because the state
has conceded the inaccuracies, the only question here is
whether the court relied on the inaccurate information con-
cerning Lechner’s criminal record at sentencing. A sentenc-
ing court demonstrates actual reliance on misinformation
1
In 1980, Lechner was arrested in Illinois and charged with two
counts of possession with intent to deliver a controlled substance
(cocaine) and two counts of possession with intent to deliver
marijuana. Two of the counts were consolidated and two were
dismissed, resulting in only one criminal conviction. In 1988,
Lechner was arrested in Illinois and charged with battery. Ac-
cording to Lechner, he paid a fine for this offense. His record
shows only that the battery charge was dismissed. Finally, in
1990, Lechner was arrested in Wisconsin for battery. Lechner was
charged only with a violation of a misdemeanor disorderly
conduct ordinance. Lechner pleaded no contest to this ordinance
violation, paid a fine, and was ordered by the court to attend an
“Alternatives to Aggression” program. According to the pre-sen-
tence report, Lechner admitted that alcohol or drug use played a
part in both battery arrests, however he later disputed this
admission. Lechner, 576 N.W.2d at 925-26 n.14.
No. 02-3426 5
when the court gives “explicit attention” to it, “found[s]” its
sentence “at least in part” on it, or gives “specific con-
sideration” to the information before imposing sentence.
Tucker, 404 U.S. at 447; see also Townsend v. Burke, 334 U.S.
736, 741 (1948) (reversing sentence violating due process
because it relied upon “materially untrue” assumptions).
The Wisconsin Supreme Court reviewed the sentencing
transcript and determined, in a finding of fact, that the dis-
trict court did not rely on the convictions in arriving at the
sentence. Lechner, 576 N.W.2d at 927. In reaching this
conclusion, the court noted that while the circuit court did
specifically refer to the inaccurate information contained in
the pre-sentence report when considering the character of
the defendant, that reference to Lechner’s prior convictions
was “no more than the court identifying individual episodes
amounting to ‘warning signals [of a problem with drugs
and alcohol] of which the defendant should have been
aware.’ ” Id. at 926. The court also noted that the circuit
court also included as warning signals Lechner’s long
history of drug and alcohol use, his participation in an
aggression treatment program, and his failure to complete
a treatment program for alcohol abuse. This demonstrates,
the court reasoned, that the reference to the convictions was
not made because the court found the convictions them-
selves important, but because the behavior that led to the
crimes demonstrated warning signals. The court’s analysis
of this issue comported with the correct due process consid-
erations set forth in Tucker, 404 U.S. at 447, and therefore it
was not contrary to federal law. See Williams, 529 U.S. at
402-03; Lechner, 576 N.W. 2d at 925. Because the court
proceeded under the appropriate legal standard, we next
turn to whether the Wisconsin Supreme Court’s application
of the law to the facts was unreasonable.
In fact, there is no indication in the record that the circuit
court founded its sentence at least in part on these convic-
6 No. 02-3426
tions, or gave specific consideration to the fact that he was
convicted for these acts. Lechner does not contest his arrests
for the conduct in question and fines paid for the illegal
conduct and attended aggression treatment programs.
Therefore, Lechner’s argument boils down to whether
the mere reference to an inaccurate criminal history dur-ing
sentencing, despite the existence of the underlying conduct,
constitutes reliance under the Tucker standard. Lechner
maintains that it does, relying on United States, ex rel. Welch
v. Lane. In Welch, we held that a judge’s spe-cific, but
erroneous, discussion of a previous conviction for armed
robbery was an unconstitutional factor in his sentencing
when the previous conviction was only for robbery. Welch,
738 F.2d 865. However, this case is distinguishable because
in Welch, the sentencing judge specifically mentioned that he
was increasing the defendant’s sentence due to the fact that
the defendant’s prior conviction was for armed robbery and
that armed robbery was a serious offense. Conversely, in
this case, the sentencing judge drew no such specific
attention to number of the convictions but merely that the
arrests themselves should have been warning signs of
undesirable behavior: i.e., drug and alcohol abuse. In fact,
during sentencing the judge specifically mentioned that
these acts, and others, should have constituted “wakeup
calls” for Lechner to change his behavior. That is true
whether Lechner was convicted of the offenses or not.
Therefore, while Lechner does show that the circuit court
mentioned the convictions, he does not propound clear and
convincing evidence that demonstrates that the Wisconsin
Supreme Court unreasonably found that the district court
did not rely on those convictions in sentencing. Moreover,
it was eminently reasonable for the sentencing judge to
consider this underlying conduct, given that it was alcohol
abuse that caused the death of Robert Pinney. A post-arrest
blood test showed that Lechner had a blood alcohol level
No. 02-3426 7
well above the legal limit. While under the influence,
Lechner was driving at a speed roughly 20 miles over the
posted limit and crossed the center line twice to pass
another car. When he crossed the center line a third time, he
collided head-on with Jan Pinney’s vehicle. Under these
circumstance we cannot say that the Wisconsin Supreme
Court acted unreasonably in finding that the circuit court
did not rely on the erroneous sentencing report in sentenc-
ing Lechner, and therefore his due process claim fails.
Next, we turn to Lechner’s argument that the Double
Jeopardy Clause of the Fifth Amendment, as incorporated
against the states by the Fourteenth Amendment, bars his
convictions and sentences for both second-degree reckless
homicide, in violation of Section 940.06 of the Wisconsin
Statutes, and for intoxicated vehicular homicide, in violation
2
of Section 940.09 of the Wisconsin Statutes.
The imposition of more than one conviction for the same
criminal act violates the Double Jeopardy Clause of the Fifth
Amendment. Schiro v. Farley, 510 U.S. 222, 229 (1994). The
Supreme Court held in Missouri v. Hunter, 459 U.S. 359, 368
(1982), that where “a legislature specifically authorizes
cumulative punishment under two statutes, regardless of
2
Sections 940.06(1) and 940.09 of the Wisconsin Statutes provide
that:
940.06. Second-degree reckless homicide
(1) Whoever recklessly causes the death of another human
being is guilty of a Class C felony.
940.09. Homicide by intoxicated use of vehicle or firearm
(1) Any person who does any of the following is guilty of a
Class C felony:
(a) Causes the death of another by the operation or
handling of a vehicle while under the influence of an
intoxicant.
8 No. 02-3426
whether those two statutes proscribe the ‘same’ conduct
under Blockburger, a court’s task of statutory construction is
at an end and the prosecutor may seek, and the trial court or
jury may impose, cumulative punishment under such
statutes in a single trial.” First and foremost, both parties
agree that there is no double jeopardy concern under the
traditional Blockburger analysis. Blockburger v. United States,
284 U.S. 299, 304, (1932). To overcome the Blockburger
hurdle, the two offenses each must require proof of an
element that the other does not. United States v. Dixon, 509
U.S. 688, 696 (1993). Pursuant to that analysis it is clear that
the two statutes have independent elements: Reckless
homicide requires proof of recklessness, and intoxicated
vehicular homicide requires proof of intoxication and use of
a motor vehicle. Morever, the Wisconsin Supreme Court
noted that Lechner’s conduct independently satisfied the
requirements for each of theses statutes at separate times,
and Lechner has not provided clear and convincing evi-
dence otherwise. Lechner, 576 N.W. 2d at 921-23. However,
Lechner argues that his sentence constitutes double jeop-
ardy because the Wisconsin legislature did not intend mul-
tiple punishments for his conduct, as evinced by Wisconsin
Statute § 939.66(2). Wisconsin Statute § 939.66 provides:
Upon prosecution for a crime, the actor may be con-
victed of either the crime charged or an included crime,
but not both. An included crime may be any of the fol-
lowing:
***
(2) A crime which is a less serious type of criminal
homicide than the one charged.
He argues that § 939.66 applies to his conviction because
intoxicated vehicular homicide is a more serious offense
than reckless homicide. He admits that although both
No. 02-3426 9
statutes carry the same maximum prison term as Class C
felonies, he faces an additional $250.00 fine and loss of his
driver’s license under intoxicated vehicular homicide.
Because Lechner’s argument hinges on an interpretation
of state law, we are fortunate to have the Wisconsin Su-
preme Court’s interpretation of the statute. “State courts are
the ultimate expositors of their own state’s laws and federal
courts entertaining petitions for writs of habeas corpus are
bound by the construction placed on a state’s criminal
statutes by the courts of that state except in extreme circum-
stances . . . .” Cole v. Young, 817 F.2d 412, 416 (7th Cir. 1987)
(citing Mendiola v. Estelle, 635 F.2d 487, 489 (5th Cir. 1981)).
See also Schlesinger v. Councilman, 420 U.S. 738, 755 (1975)
(state court “alone can define and interpret state law”). The
Wisconsin Supreme Court ruled that the legislature did not
intend to prohibit multiple prosecutions for equally serious
crimes and that prison terms were the controlling factors in
making the two crimes equally serious. Lechner, 576 N.W.2d
at 920. Then, the Wisconsin Supreme Court specifically
rejected Lechner’s argument that the maximum penalties for
the two crimes are different because intoxicated use of a
motor vehicle is also punished by revocation of driving
privileges and a surcharge for a driver assessment program.
Id. at 922. The court noted that the legislature enacted the
two statutes to protect distinct public interests and con-
cluded by stating that: “The different conduct proscribed by
and the different purposes of the reckless homicide and
homicide by intoxicated use of a vehicle statutes further
convince us that the legislature intended multiple convic-
tions and punishments for those offenses.” Id. at 922.
This is fatal to Lechner’s claim. Federal habeas corpus
relief does not lie for errors of state law, see Lewis v. Jeffers,
497 U.S. 764, 780 (1990), and we are bound by the state
court’s interpretations of state law. See, e.g., Wainwright
10 No. 02-3426
v. Goode, 464 U.S. 78, 84 (1983). Violations of state laws are
cognizable only if they resulted in fundamental unfairness
and consequently violate a petitioner’s constitution-al
rights. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t
is not the province of a federal habeas court to reexamine
state court determinations on state law questions. In
conduct-ing habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”). This interpretation
of state law is not fundamentally unfair. See, e.g., Helvering
v. Mitchell, 303 U.S. 391, 404 (1938) (civil penalty for fraud
does not violate the Double Jeopardy Clause). The two stat-
utes can be reasonably seen to be equally serious, and
therefore his multiple punishments do not violate state law
nor does the interpretation of the law violate Lechner’s right
against double jeopardy. Therefore, because Lechner also
does not have a constitutional claim under the Blockburger
test, his habeas petition for double jeopardy violation must
fail.
III.
For the foregoing reasons, we AFFIRM the district court.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-22-03