Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
ERICKSON v. SCHOMIG
September 28, 2001
UNITED STATES EX REL. PAUL S. ERICKSON, N33213, PETITIONER,
JAMES M. SCHOMIG, WARDEN OF THE PONTIAC CORRECTIONAL CENTER, RESPONDENT.
The opinion of the court was delivered by: Blanche M. Manning, U.S. Judge
MEMORANDUM OPINION AND ORDER
Erickson now petitions this court for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, raising ten grounds for relief. He also seeks
discovery pursuant to Rule 6 of the Rules Governing Habeas Corpus Cases
Under § 2254 and a stay of this petition while he pursues that
discovery. For the following reasons, the court denies Erickson's motions
for discovery and a stay, and finds that Erickson's waiver of a
sentencing jury did not violate his constitutional rights but that he
nevertheless received ineffective assistance of counsel at sentencing and
is entitled to relief under § 2254.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L
104-132, 100 Stat. 1214 (the "AEDPA"), apply to Erickson as he filed his
petition after the AEDPA's effective date. This is Erickson's first
petition and he filed it within a year after the conclusion of proceedings
relating to his second state petition for post conviction relief. See
See 28 U.S.C. § § 2244(d)(2), 2254(b) & (d). Therefore, the
court has jurisdiction to consider Erickson's petition.
On August 4, 1982, the body of Elizabeth Launer was found in a retention
pond in Rolling Meadows, Illinois. Launer had been stabbed in the neck,
the chest, and the abdomen. Erickson was charged with a total often
counts stemming from Launer's murder and rape and prior acts of
violence.*fn1 Before trial, Erickson attempted to waive his right to
have a jury to consider the imposition of the death penalty if he was
convicted of murder. The court, however, refused his waiver and Erickson
proceeded to trial before a jury.
As discussed below, although Erickson denies that he murdered Launer,
he has not presented clear and convincing evidence rebutting the
statutory presumption of correctness. See 28 U.S.C. § 2254 (1).
Accordingly, the court presumes that the state court's factual
determinations are correct. See id.; see also Sumner v. Mata, 449 U.S. 539,
547 (1981); Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999), cert.
denied sub nom. Sanchez v. Schomig, 529 U.S. 1089 (2000). Thus, the court
adopts the following factual background from the record and the opinions
of the Illinois Supreme Court in People v. Erickson, 117 Ill.2d 271
(Ill. 1987) (state direct appeal) ("Erickson I"), cert. denied,
486 U.S. 1017 (1988), rehearing denied, 487 U.S. 1283 (1988), People v.
Erickson, 161 Ill.2d 82 (Ill. 1994) (first state post-conviction appeal)
("Erickson II"), cert denied, 514 U.S. 1107 (1995), and People v.
Erickson, 183 Ill.2d 213
(Ill. 1998) (second state post-conviction
appeal) ("Erickson III").
Testimony proffered by the State established that, on the evening of
July 30, 1982, Erickson (who was twenty-four years old), at the request
of a former girlfriend, Lisa Soderberg, bought alcoholic beverages and
rented a motel room at the Rolling Meadows Holiday Inn for a group of
five juveniles: Soderberg, Thomas Fairweather, Michael Blanchard, Renee
East and the victim, Elizabeth Launer. Soderberg was sixteen years old,
Fairweather, Blanchard, and Launer were fifteen years old, and East was
thirteen years old. Later in the evening, East left the motel, leaving
Erickson in the room with Soderberg, Fairweather, Blanchard, and Launer.
A. Fairweather's Testimony
Fairweather testified for the State as follows. At approximately 11:30
p.m., Erickson approached him, walked with him outside, and asked whether
or not he could keep his "mouth shut" regardless of "how bad a crime [he]
was to witness." (R. 1325). Fairweather said he could, and asked Erickson
what he had in mind. Erickson told him that he intended to have sex with
Launer because "he went out with her the night before and all she did was
prick tease him." (R. 1326). According to Fairweather, Erickson said that
he would rape Launer if she did not cooperate.
Fairweather expressed concern about the possibility that Launer would
report the rape to the police. In response, Erickson told him that, after
the rape she would "never go home again." (R. 1326). When Fairweather
again expressed concern regarding the police, Erickson stated that they
would not be caught and said that he would be the one to kill Launer.
Erickson then pulled a knife from underneath the driver's seat of his
car. He also showed Fairweather two neckties and a rolled up sock. He and
Fairweather returned to the hotel room and then called Blanchard and
Fairweather into the hall to talk, , According to Fairweather, Erickson
suggested the following plan. First, to get rid of Soderberg, Erickson
suggested that Fairweather provoke an argument with her so that she would
get angry and leave. Erickson also gave the two ties to Blanchard and the
sock to Fairweather. Because Erickson did not want to rape Launer at the
motel, he told Fairweather and Blanchard that the group would leave the
motel in his car.
Fairweather testified that Erickson instructed Blanchard to sit in the
front seat on the passenger's side next to Launer (who would thus be
seated between Blanchard and Erickson). Erickson also told Fairweather to
sit in the back seat on the passenger's side. When Erickson gave the
signal, Fairweather was to reach over the seat and stuff the sock into
Launer's mouth. Fairweather and Blanchard would then grab Launer, tie her
hands with one necktie, and place the other necktie over her mouth.
According to Fairweather, Erickson said they would then "take her clothes
off, rape her, kill her and get rid of the body."
Consistent with the instructions provided by Erickson, Fairweather
started an argument with Soderberg, which caused her to leave. The group
(Erickson, Blanchard, Fairweather and Launer) left the motel in
Erickson's car at approximately 3:00 am. positioned according to his
instructions. Erickson drove to the Carriage Way apartment complex in
Rolling Meadows and parked in a secluded grassy area between some tennis
courts and an open field.
Saying that he did not want to have anything to do with what was
occurring in the car, Blanchard asked Fairweather for cigarettes and left
the vehicle. Blanchard walked approximately twenty-five yards away from
the car and sat on the grass with his back to the car. Inside the car,
Erickson removed Launer's clothing and laid her across the front seat.
Fairweather, who was still in the back seat, saw Erickson position
himself on his knees between Launer's legs and heard a zipper being
unzipped. Launer told Erickson that she would "pay him back" and "come
back to haunt him." (R. 1350). Fairweather then heard Launer cry and
moan. Erickson slapped Launer and said, "open up, bitch."
According to Fairweather, Erickson lowered himself on top of Launer. A
short while later, Fairweather heard a zip and snap and Erickson left the
car. Fairweather got into the front seat and tried to free Launer, who
was nude and bound by the neckties. Launer begged Fairweather not to hurt
her, and Fairweather told her, "I am going to try to get you out of
here. I am going to help you. This guy is crazy." (R. 1353). As
Fairweather began to loosen one of the neckties, Erickson returned and
got into the back seat. Although Fairweather denied having any sexual
contact with Launer, he testified that he "pretended" to have sexual
intercourse with her. Subsequently, Erickson got out of the car, opened
the front door, and pulled Launer out. Fairweather picked up her
clothes, and Erickson pulled Launer to the nearby retention pond while
Fairweather walked alongside them.
Erickson forced Launer to the ground on her back. Launer began to plead
for mercy, begging Erickson not to hurt her or kill her. (R. 1362). In
response, Erickson told her "Sorry. It's got to end like this because you
had to be such a prick tease." (R. 1363). Fairweather held her head,
Erickson pulled out the knife and raised the knife over Launer. As Launer
screamed, Erickson stabbed her in the chest. Fairweather released
Launer's head and got up. While he was walking away, he "heard the knife
go into her body again." (R. 1365). On cross-examination, Fairweather
testified that his hands were bloody but that Erickson's were not (R.
1450-51). He also claimed that blood had gotten onto his hands and pants
when he picked up Launer's body to throw her into the water. (R. 1452).
Erickson called out to Fairweather, who walked back towards the body.
Fairweather and Erickson threw Launer's body and her clothing into the
pond, returned to the car, and left the scene along with Blanchard. The
trio then went to the home of Erickson's girlfriend, Mickey Jaksch. They
woke her up and, according to Fairweather, Erickson told her that he had
raped and killed a girl.*fn2
On cross-examination, Fairweather acknowledged that he also had been
charged (as a juvenile) with murder, rape, concealment of a homicidal
death, unlawful restraint, and aimed violence. The State, however,
offered him a sentence of approximately four years, with the possibility
of a reduction for good time served, if he pleaded guilty to one charge
Blanchard also testified for the State. He stated that Erickson
initiated a conversation with him and Fairweather wherein Erickson told
them that he wanted to have sex with Launer. Erickson "talked about
raping Launer and killing her if she resisted." Erickson subsequently
approached Blanchard and Fairweather, gave Fairweather a sock, and told
him to reach over the seat and put the sock into Launer' s mouth to gag
her. Erickson also gave Blanchard two or three neckties so Blanchard
could bind Launer. Blanchard kept one and returned the others.
Blanchard testified that he, Erickson, Fairweather, and Launer left the
motel and drove to an apartment complex. Erickson drove, Blanchard sat on
the passenger side of the front seat, Launer sat on the front seat
between Erickson and Blanchard, and Fairweather sat in the back. Erickson
parked towards the back of the complex, next to some tennis courts and a
grassy field. Blanchard saw Erickson look into the back seat and nod his
head. Fairweather reached over the front seat and unsuccessfully tried to
place the sock into Launer's mouth.
Blanchard then said that he saw Erickson and Launer struggle, but did
not see Erickson bind or gag her. Blanchard got out of the car and walked
about twenty yards away. He testified that he heard crying and moaning
sounds coming from the car. A short while later, he saw Erickson pull
Launer out of the car. Erickson, Fairweather, and Launer walked into a
wooded area and Blanchard lost sight of them. He did, however, hear
moaning and sobbing, followed by a scream. A few minutes later, he heard
a splash. Erickson and Fairweather then returned to the car and the three
men drove to the home of Jaksch, Erickson's girlfriend.
While they were en route to Jaksch's home, Blanchard stated that
Erickson admitted that he had stabbed Launer. He also stated that, after
they arrived at the house, Erickson told Jaksch "that he just killed
somebody: "her name was Liz.'" On cross-examination, Blanchard testified
that he had been charged in a juvenile petition with concealment of a
homicidal death. He also acknowledged that, in return for his testimony,
he expected the State to drop the charge.
Erickson took the stand as the sole witness in his defense. His
testimony materially differed from that of Fairweather and Blanchard,
particularly as to who decided to rape and kill Launer and who actually
killed her. Specifically, Erickson testified that Fairweather said he
wanted to have sex with Launer, that he would rape her if he had to, and
that "[Launer] would never go home again." Erickson also stated that
Fairweather supplied the sock and neckties, although he admitted that the
tie used to bind Launer's hands belonged to his father.*fn3
Launer was told to lie down on the ground. After she did so, Erickson
knelt down and held her feet and Fairweather stabbed Launer in the chest
with a knife (which Erickson admitted that he owned). He and Fairweather
threw Launer's body and the clothes into the pond and left. Erickson
acknowledged that the group then drove to Jaksch's house However, he
stated that he told Jaksch only that "he was involved in the killing of a
girl." On August 6, 1982, the Naperville Police arrested Erickson and
charged him with the rape and murder of Elizabeth Launer. The complaint
was superseded by an indictment alleging murder, rape, unlawful
restraint, concealment of a homicidal death, and armed violence. After a
trial, a jury found Erickson guilty on all counts.
As noted above, prior to trial, Erickson had unsuccessfully attempted
to waive his right to have a jury consider the imposition of the death
penalty if he was convicted of murder. After the jury returned its
verdict, Erickson again tendered a waiver of a sentencing jury. This time
the court accepted the waiver and commenced a sentencing hearing pursuant
to Ill. Rev. Stat. ch. 38, ¶ 9-1(d)(3) (1981).
The State presented additional evidence in aggravation during the
sentencing hearing. First, it presented the testimony of Billy Johnson,
who recounted an incident which occurred approximately two weeks before
Launer's death. Johnson testified that Erickson suggested that they go to
O'Hare International Airport to pick up a prostitute. They traveled to
O'Hare where, according to Johnson, Erickson told him they would have to
"get rid" of (i.e., kill) the prostitute after they had sexual relations
Second, the State presented the testimony of Leslie Blackstock, who
said Erickson had raped her in 1979. Third, Marge Rader testified that
Erickson had tried to rape her in March of 1979 and that he had later
slashed all the tires on her car. One week after that, Erickson
approached her with a knife and told her that he should have slashed her
instead of the tires. Fourth, Therese Moran testified that Erickson had
convinced her to go into a women's bathroom where Erickson had
intercourse with her. (R. 2232-33). Erickson impregnated Moran and told
her not to tell anyone they were having a sexual relationship.
Fifth, the State offered the testimony of Rolling Meadows Police
Detective Greenway. Greenway testified he had recently spoken with one of
Erickson's former girlfriends, Joanne Combs. Over the defense's
objection, Greenway testified that Combs told him that Erickson slapped
her around, impregnated her, and threatened to kill her if she told
anyone that he was the father. Greenway also testified that Combs related
to him that Erickson had admitted to her that he had once stabbed a black
man to death.
Finally, Harold Matthews testified that he had been arrested and
incarcerated for failing to pay for a stay at the Rolling Meadows Holiday
Inn. Matthews and Erickson met at the Cook County Jail. According to
Matthews, Erickson told him that the Holiday Inn that was the source of
Matthews' troubles was the place where he had a party and stabbed a
girl. Erickson also told him that "it was a big thrill" and described the
killing in "a graphic, vivid manner." (R. 2285, 2299).
Erickson then presented two mitigating factors: (1) "no significant
history of prior criminal activity"; and (2) the presence of an "extreme
mental or emotional disturbance, although not such as to constitute a
defense to prosecution." See Ill. Rev. Stat. ch. 38, ¶¶ 9-1(c)(1) &
(2) (1981). In support of the second mitigating factor, Erickson offered
the testimony and report of John Weliczko, an individual who claimed to
be a psychotherapist and who had been retained by Erickson's parents.
Weliczko was the only witness to testify on behalf of Erickson during the
sentencing proceedings. The defense intended Weliczko to opine, as a
mental health expert, that a psychological condition explained Erickson's
behavior. See Ill. Rev. Stat. Ch. 38 ¶ 9-1(c)(2) (1981).
In his written "psychological evaluation," Weliczko described Erickson
as manipulative and narcissistic with a "grandiose sense of
self-importance," "feelings of entitlement," "lack of empathy for the
pain of others," and a preoccupation with sexual fantasies of women. (R.
2673). He also questioned whether Erickson both despised and adored
Launer. (R. 2674). In addition, he stated that Erickson's parents
"cannot be blamed for his disorder. The real causes are society, peers
and the judicial system who allowed his self-deception to escalate to a
point of self destruction." (R. 2675) (emphasis in original). Finally, he
concluded that the actions of Erickson and his accomplices:
must be viewed as a group portrayal of a
narcissistically preoccupied teenage band of
reckless, unempathetic and psychologically unstable
group of young men and women. [Erickson] cannot be the
only guilty part. The blood of the victim will never
be psychologically excised from the stained group who
partied at the Holiday Inn, and those who assisted in
the concealment of evidence.
(R. 2675) (emphasis in original).
At the sentencing hearing, Weliczko claimed that, among other degrees,
he held a masters degree in psychology from Harvard University and a
doctorate in psychology from the University of Chicago. However, during
cross examination, he admitted that he had received a masters in theology
from the Harvard Divinity School and that his doctorate was a ministry
degree in pastoral counseling and psychology from the Chicago Theological
Seminary, an entity associated with the University of Chicago. Weliczko
asserted that he nevertheless practiced psychology and thus was a mental
health care provider. However, he also admitted that he did not have any
degrees in psychology or any medical training and that he had previously
only testified as a pastoral counselor. (R. 2365).
The trial judge refused to qualify Weliczko as an expert, but did
permit him to offer lay testimony. He also denied Erickson's motion for a
continuance to secure the testimony of a qualified mental health expert,
ruling that such additional testimony would be cumulative to Weliczko's
testimony, which the court would be considering.
At the close of the aggravation phase of sentencing, Erickson's trial
counsel requested a continuance because Erickson had a doctor's
appointment related to a knee injury. Counsel advised the court that
Erickson was taking medication for his knee problem which was "giving him
slight feelings of detachment from reality." (R. 23 02-03). The court
denied Erickson's motion.
After reviewing all of the evidence in aggravation and mitigation, the
trial judge found beyond a reasonable doubt the existence of one
statutory aggravating factor: that Launer had been killed in the course
of a felony (rape) and that Erickson had actually killed her. See Ill.
Rev. Stat. ch. 38, ¶ 9-1(b)(6) (1981). The court also found that no
mitigating factors precluded the imposition of the death penalty and
stated that, if it could consider the feelings of Erickson's parent, its
judgment would be different. The court then sentenced Erickson to death.
The lllinois Supreme Court affirmed, Erickson I, and the United States
Supreme Court declined to issue a writ of certiorari, 486 U.S. 1017, 108
S.Ct 1754 (1988).
E. Erickson's First State Post-Conviction Petition
Erickson then sought relief under the Illinois Post Conviction Hearing
Act, Ill. Rev. Stat. ch. 38 ¶ 122-1, et seq. (1981). The case was
assigned to Judge Toomin, who had presided over Erickson's trial, but was
subsequently transferred to Judge Richard Neville. The circuit court
dismissed Erickson's petition in its entirety and the Illinois Supreme
Court affirmed the denial of all relief. See Erickson II. Erickson's
claims primarily related to Weliczko's credentials (or, more accurately,
the lack thereof. Erickson began by asserting that Weliczko's testimony
prevented him from receiving a fair sentencing hearing, pointing to a
transcript from the Chicago Theological Seminary and an affidavit from an
official at Gordon College in Wenham, Massachusetts, showing that
Weliczko had earned a degree in philosophy there. Noting that the fact
that Weliczko was not a psychologist was clear from the trial record, the
Illinois Supreme Court concluded that the claim based on Weliczko's fake
credentials was procedurally defaulted because it could have been raised
on direct appeal.
Erickson also claimed that his counsel was ineffective for two
reasons. First, he challenged counsel's failure to verify Weliczko's
credentials and his decision to put Weliczko on the stand, asserting that
Weliczko's testimony undermined the defense strategy. The illinois
Supreme Court found that these claims were procedurally defaulted
because, like the other claims based on Weliczko's ersatz credentials,
they could have been raised on direct appeal since "any inadequacy there
may have been with counsel's representation with respect to Weliczko was
evident when Weliczko was cross-examined." Erickson II, 161 Ill.2d at
Both Dr. Gelbort and Dr. Fisher administered a battery of psychological
tests and interviewed Erickson thoroughly. Their reports show that
Erickson suffered a number of head traumas which resulted in an
alteration of consciousness. He was dropped on his face as a baby and as
a teenager had blurred vision, spells of unconsciousness, and concussions
from at least eight separate falls. He also had headaches, vomiting, and
nerve injuries related to the head trauma
Erickson's mother was schizophrenic and he was sexually abused by a
priest as a child. In response, he began to abuse drugs and alcohol at an
early age. He also turned to psychotropic drugs known to alter brain
functioning and to cause brain damage. When he was thirteen years old, he
was admitted to the emergency room due to severe alcohol intoxication and
he also unsuccessfully attempted to commit suicide by taking a drug
Neurophysical tests showed that Erickson had brain damage in the
dominant cerebral hemisphere which caused him to have difficulty
understanding what was expected of him, processing information, dealing
with quickly evolving situations, and learning from his own or other's
behavior and mistakes. In addition, Erickson's drug and alcohol use at
the time of Launer's death augmented the behavioral problems caused by
Erickson's brain damage and further diminished his ability to control his
actions and make reasoned judgments.
Erickson also submitted affidavits from two former teachers, both of
whom said that Erickson had been a well-adjusted student and that they
were shocked to hear that he was involved in Launer's death. The Illinois
Supreme Court found that, in light of the record as a whole, testimony
from the psychologists and Erickson's former teachers would not have
altered the outcome.
In addition, Erickson asserted that he was entitled to an evidentiary
hearing to further investigate the effect of the denial of his motion for
a continuance to obtain a psychological evaluation. The Illinois Supreme
Court held that this issue had been previously raised on direct appeal
and thus could not be relitigated in collateral proceedings.
Erickson also claimed that he was entitled to relief because he waived
a jury for the sentencing phase without knowing that if even one juror
disagreed, he could not receive the death penalty. Erickson had answered
affirmatively when the trial judge asked if he understood that, like a
finding of guilt, death had to be the jury's unanimous choice, meaning
that all twelve jurors had to agree. He unsuccessfully challenged the
sufficiency of this admonishment on direct appeal. Nevertheless, during
his post-conviction proceedings, he submitted an affidavit saying that he
did not truly understand the unanimity requirement. The Illinois Supreme
Court rejected this argument, noting that Erickson could not prevail in
light of the sufficient admonishment and his own acknowledgment, at the
time, that he understood it.
Although the Illinois Supreme Court affirmed the dismissal of
Erickson's petition, see Erickson II, Justice McMorrow (joined by Justice
Harrison) filed a dissenting opinion stating that she believed Erickson
had not waived his claims based on Weliczko's credentials and that he was
entitled to an evidentiary hearing on this issue. Id. 161 Ill.2d at
96-119. The United States Supreme Court subsequently denied certiorari.
514 U.S. 1107 (1995).
F. Erickson's Second State Post-Conviction Petition
A defendant's failure to raise a claim of ineffective assistance of
appellate counsel in a state post-conviction does not operate as a waiver
of this issue if the same attorney represented the defendant on direct
appeal and in his initial state post-conviction petition. Erickson III,
183 Ill.2d at 223. Erickson's second state post-conviction petition thus
contained ineffective assistance claims directed at his original
appellate attorney, who had represented him on direct appeal and in his
initial state post-conviction petition.
In the second state post-conviction petition, Erickson first claimed
that counsel's representation during sentencing was deficient because
counsel relied on Weliczko and failed to uncover and present additional
mitigating evidence. In support, Erickson submitted an affidavit from
another mental health professional as well as affidavits from family
members who said that they would have testified had they been asked to do
so. The Illinois Supreme Court found that the claim was barred by res
judicata because it was raised in the first state post-conviction
proceeding, where Erickson had an opportunity to develop the record.
Erickson also asserted that his counsel was ineffective because he
failed to raise issues relating to Weliczko on direct appeal and thereby
caused him to waive these claims. The Illinois Supreme Court found that,
while Weliczko's characterization of Erickson may not have helped him, it
did not contribute to the trial court's sentencing decision. In support,
the Illinois Supreme Court noted that the aggravating factors listed by
the trial judge did not include Weliczko's testimony but, instead,
emphasized the heinous nature of the crime and Erickson's prior history
of sexually attacking women.
The Illinois Supreme Court acknowledged that the trial judge referred
to Weliczko's testimony when it summarized the mitigating evidence. It
found, however, that the trial judge did not consider this testimony to
be aggravating and that, regardless of Weliczko's opinion, the
circumstances of the crime and the aggravation evidence presented by the
State (portraying Erickson as calculating, aggressive and violent) made
it "unlikely" that the trial court's conclusion would have been different
if Weliczko had not testified. Erickson III, 183 Ill.2d at 229. It thus
concluded that counsel's use of Weliczko did not prejudice Erickson.
Next, Erickson again challenged Weliczko's testimony, this time by
claiming that the trial court's reliance on that testimony and the
accompanying written report deprived him of the right to be sentenced
based on fair and reliable evidence. The Illinois Supreme Court
disagreed, stating that the trial court was "well aware of Weliczko's
shortcomings as a witness." Erickson III, 183 Ill.2d at 232-33. It also
noted that the trial court considered Weliczko to be a lay witness only
and did not attach significant weight to his testimony. Finally, it
observed that the negative aspects of Weliczko's testimony — that
Erickson was "manipulative, ...