#24624-a-DG 

2008 SD 30 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

JASON D. ERICKSON, Petitioner and Appellant, 

 v. 

DOUGLAS WEBER, Warden, South 

Dakota State Penitentiary, Respondent and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIFTH JUDICIAL CIRCUIT 

SPINK COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE SCOTT P. MYREN 

Judge 

* * * * 

MARK McBRIDE 

Beverly Hills, California 

and 

JULIA M. DVORAK and 

REED RASMUSSEN of 

Siegel, Barnett and Schutz 

Aberdeen, South Dakota Attorneys for petitioner 

and appellant. 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General 

Pierre, South Dakota Attorneys for respondent 

and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON FEBRUARY 11, 2007 

 OPINION FILED 04/16/08 
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GILBERTSON, Chief Justice 

[¶1.] On October 28, 2004, Jason Erickson (Erickson) filed a petition for writ 

of habeas corpus in the South Dakota Fifth Judicial Circuit alleging that the State 

failed to disclose evidence relevant to his sentencing. Erickson filed a supplemental 

petition on December 19, 2005. The habeas court heard the matter on May 26, 

2006. Thereafter, the court denied Erickson’s petition, filing its letter opinion on 

December 22, 2006, with findings of fact and conclusions of law entered on July 27, 

2007. We affirm. 

FACTS AND PROCEDURE 

[¶2.] Erickson’s appeal from the habeas court arises from two aggravated 

assault convictions and his admission to a part 2 habitual offender information 

stemming from an armed standoff that started on the night of August 9, 2002. The 

incident began when law enforcement attempted to initiate a traffic stop after 

clocking Erickson traveling 95 mph in a 65 mph zone. Erickson, who later told a 

Department of Criminal Investigation agent that he did not stop because he was 

intoxicated and did not want a DUI, led law enforcement to his rural Spink County 

South Dakota home near Tulare. 

[¶3.] When Erickson arrived at his property, a Spink County Sherriff’s 

Deputy, who was on foot, attempted to stop his vehicle. However, Erickson 

continued on to his farmhouse, nearly running down the deputy in the process. 

Once inside, Erickson barricaded himself. Armed with numerous firearms and a 

large quantity of ammunition, he proceeded to hold officers from a number of 

northeastern South Dakota law enforcement agencies at bay for several hours. 
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During the standoff, Erickson fired multiple rounds of shotgun and rifle 

ammunition at law enforcement and their vehicles. 

[¶4.] Sometime after 4:00 a.m. on the morning of August 10, Detective Steve 

Pinok (Pinok) of the Aberdeen, South Dakota Police Department was contacted to 

assist in negotiations with Erickson. Unable to communicate with him by phone, 

Pinok was driven by armored personnel carrier to speak with Erickson through a 

farmhouse window. Pinok testified during his deposition that he asked Erickson, 

“what I could do or what I could provide to him to have him lay down his arms and 

come out peacefully.”1 Erickson told Pinok that he wanted assurances that he 

would not go to the penitentiary and that he would receive assistance with chemical 

dependency and mental health issues. 

[¶5.] Pinok relayed this information to Spink County State’s Attorney, 

Victor Fischbach. At around 5:20 a.m., Fischbach, together with the Spink County 

Sheriff, Les Helm, left the scene of the standoff and drove to Redfield, South Dakota 

where Fischbach typed up a letter addressing Erickson’s demands in exchange for 

his peaceable surrender to law enforcement. Fischbach and Sheriff Helm returned 

and gave the Letter to Pinok, who read it to Erickson from the armored personnel 

carrier. The Letter, on State’s Attorney letterhead, dated August 10, 2002, referred 

to by the habeas court as the “Fischbach Letter,” stated the following: 

 In consideration of Jason Erickson laying down his arms 

 and surrendering to law enforcement, the state agrees to 

 help him get the assistance he needs with a chemical 

 dependency and psychological evaluations. In exchange 

1. At the May 26, 2006 hearing, the parties stipulated to the admission of 

Pinok’s deposition testimony. 
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 for Jason Erickson agreeing to pay restitution on the 

 aggravated assault upon an officer, the state further agrees 

 to consider not seeking a penitentiary sentence. 

 The states [sic] position here is that Jason Erickson needs 

 to get help and he realizes that. The states [sic] primary 

 interest here is ensuring that nobody, including Jason 

 Erickson, gets hurt or killed. The state will uphold this 

 offer if Jason Erickson exits his house peacefully and 

 immediately. 

Fischbach then added the following hand-written note to the bottom of the Letter: 

Additional: I Hereby agree to A $10,000 dollar PR Bond 

upon condition of his turn In an [sic] booking and agreement 

to turn himself In for NEMH [Northeastern Mental Health] 

in Aberdeen, Brown Co. SD on 8-11-02 at 8:00 AM. Should 

these conditions not be followed the PR Bond will be revoked. 

 VBF 

During his deposition, Pinok testified that after reading the Fischbach Letter, he 

asked Erickson what he thought about the Letter. Pinok testified that Erickson 

replied, “It sounds good.” 

[¶6.] Erickson subsequently surrendered to the chief deputy of the Spink 

County Sheriff’s Department. Erickson was handcuffed. Pinok testified that he 

handed the Fischbach Letter to the chief deputy and that he “saw the chief deputy 

fold it up and put it into his pocket and tell Jason [Erickson], ‘I’ve got it right here.’” 

[¶7.] On August 13, 2002, Erickson was indicted by a Spink County Grand 

Jury. He was charged with two counts of attempted first degree murder, four 

counts of aggravated assault, one count of felony intentional damage to property, 
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possession of a firearm by one with a prior violent crime conviction,2 eluding law 

enforcement, reckless driving, obstructing law enforcement and resisting arrest. 

On September 10, 2002, a part 2 habitual offender information was filed against 

Erickson. 

[¶8.] Erickson retained defense counsel, Ron Volesky (Volesky), who 

arranged a plea agreement whereby Erickson agreed to plead guilty to two counts of 

aggravated assault and admit to the habitual offender information. In exchange, 

the State agreed to dismiss the remaining charges and file no further charges in 

connection with the standoff. Erickson appeared in circuit court on January 14, 

2003 and pleaded guilty to the charges as set out in the plea agreement. The circuit 

court accepted the plea based on the factual basis in the record to support the 

charges and Erickson’s acknowledgment of his agreement to the terms of the plea 

agreement. However, sentencing was stayed pending the completion of a 

presentencing investigation that had been requested by Erickson. 

[¶9.] On March 25, 2003, a stipulation for substitution of counsel was filed 

whereby attorney Terry Sutton (Sutton) was substituted for Volesky. Sutton filed a 

request to withdraw Erickson’s pleas.3 However, sentencing went ahead as 

scheduled. On August 19, 2003, Erickson was sentenced to 10 to 20 years 

2. Erickson had a prior felony conviction stemming from a shooting incident in 

Redfield, in 1999. 

3. The habeas court found that the record was unclear as to whether Erickson 

abandoned this request or the circuit court denied it. 
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indeterminate on each of the two aggravated assault counts, to be served 

consecutively. On June 25, 2004, the South Dakota Board of Pardons and Paroles 

set the term on each of the two counts at 20 years. 

[¶10.] Erickson filed a pro se habeas petition on October 28, 2004. On 

November 15, 2004, attorney Kenneth Tschetter (Tschetter) filed a notice of 

appearance on behalf of Erickson in the habeas action. On January 25, 2005, a 

substitution of attorney was filed along with motion for pro hac vice requesting 

admission of attorney Mark McBride (McBride) from Hollywood, California to 

represent Erickson in the habeas action. McBride was admitted to represent 

Erickson on January 27, 2005. 

[¶11.] On May 5, 2005, McBride wrote Fischbach a letter in which he 

indicated that he had reviewed the record, including “station logs” compiled by law 

enforcement during Erickson’s standoff. McBride went on to state that from the 

station logs, “it appears that you went to the scene of the incident, left the scene to 

type up an agreement [the Fischbach Letter], and returned shortly thereafter with 

the agreement.”4 He further stated, “It is my understanding that this agreement 

contained a plea bargain between you and my client, Mr. Erickson, and that this 

plea agreement contained statements made by my client.” 

[¶12.] On September 6, 2005, McBride filed a notice of hearing to compel 

discovery along with an affidavit in support of said discovery motion. On 

4. The station logs included an entry on August 10, 2003, at 0520 hours 

indicating that Fischbach left the scene of the stand to go to his office in 

Redfield. Another entry at 0543 hours notes Fischbach’s return with “the 

agreement.” 
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September 15, 2005, Fischbach sent a letter to McBride explaining that he had just 

received a correspondence from the Spink County Sheriff’s Department indicating 

that the Fischbach Letter had been located in a “Do Not Destroy” evidence file at 

the Sheriff’s office. Fischbach enclosed a copy of the Fischbach Letter with the 

letter to McBride. 

[¶13.] Subsequently, attorneys Volesky, Sutton and Tschetter each filed 

affidavits in connection with Erickson’s habeas action. All three attorneys denied 

having knowledge of the Fischbach Letter until it was shown to them by McBride in 

mid-October 2005. 

[¶14.] At the hearing on May 26, 2006, Erickson alleged that the State failed 

to disclose evidence favorable to him, thereby violating his right to due process. 

Erickson argued that his guilty plea should be vacated or corrected to take account 

of the alleged plea agreement in the Fischbach Letter. Fischbach testified that 

there was only one copy of the Fischbach Letter and that following the standoff, he 

believed that Erickson had it in his possession. 

[¶15.] The habeas court found that both Erickson and Fischbach knew of the 

Fischbach Letter and that neither told Volesky, Sutton or Tschetter about its 

existence; that there was no evidence that the Fischbach Letter was ever in 

Erickson’s case file and that Fischbach neither knowingly or intentionally failed or 

refused to produce the Fischbach Letter for any of Erickson’s attorneys; that 

Fischbach believed there to be one copy of the Fischbach Letter and that he believed 

it was in Erickson’s possession; that Fischbach responded truthfully to McBride’s 

May 5, 2005 request for the Fischbach Letter when he told him that he did not have 

it and that it was not until McBride filed his motion to compel discovery that 
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Fischbach contacted the Spink County Sheriff’s Office and learned that the Letter 

was in the Sheriff’s custody.5 

[¶16.] The habeas court denied Erickson’s petition concluding that while the 

Fischbach Letter had been inadvertently suppressed and that it contained 

information that Erickson’s attorneys would have wanted to know about prior to 

sentencing, Erickson was not prejudiced in any way by the State’s failure to produce 

it sooner. The court concluded that the Fischbach Letter simply did not contain any 

promise that Erickson would not be incarcerated and that given the context within 

which the considerations therein were negotiated, it was not a legally enforceable 

document. 

[¶17.] Erickson raises two issues on appeal: 

1. Whether the State suppressed evidence in violation 

 of Erickson’s due process rights when it allegedly 

 failed to disclose to defense counsel the existence 

 of an alleged plea agreement contained in the 

 Fischbach Letter. 

2. Whether Erickson was entitled to specific performance 

 of the alleged plea agreement contained in the 

 Fischbach Letter. 

 

STANDARD OF REVIEW 

 Our review of habeas corpus proceedings is limited because 

it is a collateral attack on a final judgment. New v. Weber, 

1999 SD 125, ¶5, 600 NW2d 568, 571 (citing Lien v. Class, 

1998 SD 7, ¶10, 574 NW2d 601, 606) (other citation 

omitted). It is not a substitute for direct review. Id. (citing 

Loop v. Class, 1996 SD 107, ¶11, 554 NW2d 189, 191) 

(other citation omitted). We are guided by a well-established 

standard of review: 

5. By May 5, 2005, Fischbach was no longer the Spink County State’s 

Attorney. 
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Habeas corpus can be used only to review (1) whether 

the court has jurisdiction of the crime and the person 

of the defendant; (2) whether the sentence was 

authorized by law; and (3) in certain cases whether 

an incarcerated defendant has been deprived of 

basic constitutional rights. Habeas corpus is not 

a remedy to correct irregular procedures, rather, 

habeas corpus reaches only jurisdictional error. 

For purposes of habeas corpus, constitutional 

violations in a criminal case deprive the trial court 

of jurisdiction. Further, we may not upset the habeas 

court’s findings unless they are clearly erroneous. 

Bradley v. Weber, 1999 SD 68, ¶12, 595 NW2d 615, 619 

(quoting Flute v. Class, 1997 SD 10, ¶8, 559 NW2d 554, 556) 

(other citations omitted). The habeas applicant has the 

initial burden, by a preponderance of the evidence, to prove 

entitlement to relief. New, 1999 SD 125, ¶5, 600 NW2d 

at 572 (citing Lien, 1998 SD 7, ¶11, 574 NW2d at 607). 

We may affirm the ruling of the habeas court if it is “right 

for any reason.” Id. (citing Satter v. Solem, 458 NW2d 762, 

768 (SD 1990)) (other citation omitted). 

Krebs v. Weber, 2000 SD 40, ¶5, 608 NW2d 322, 324 (overruled on other grounds). 

We review findings of fact under the clearly erroneous standard, while we give no 

deference to conclusions of law and thereby apply the de novo standard. State v. 

Runge, 2006 SD 111, ¶9, 725 NW2d 589, 592 (citations omitted). 

ANALYSIS AND DECISION 

[¶18.] 1. Whether the State suppressed evidence in violation 

 of Erickson’s due process rights when it allegedly 

 failed to disclose to defense counsel the existence 

 of an alleged plea agreement contained in the 

 Fischbach Letter. 

[S]uppression by the prosecution of evidence favorable 

to an accused upon request violates due process where 

the evidence is material either to guilt or punishment 

irrespective of the good faith or bad faith of the prosecution. 
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Brady v. Maryland, 373 US 83, 87, 83 SCt 1194, 1196-97, 10 LEd2d 215 (1963) 

(emphasis added). Since Brady, the United States Supreme Court has handed 

down several opinions, expanding the scope of what constitutes prosecutorial 

suppression of evidence that rises to the level of a due process violation. The 

Supreme Court’s opinion in Strickler v. Greene, 527 US 263, 119 SCt 1936, 144 

LE2d 286 (1999), sets out the evolution of the Brady doctrine: 

 [T]he duty to disclose [Brady] evidence is applicable 

even though there has been no request by the accused, 

United States v. Agurs, 427 US 97, 107, 96 SCt 2392, 

[2399], 49 LEd2d 342 (1976), and that the duty encompasses 

impeachment evidence as well as exculpatory evidence, 

United States v. Bagley, 473 US 667, 676, 105 SCt 3375, 

[3380], 87 LEd2d 481 (1985). Such evidence is material 

“if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of 

the proceeding would have been different.” Id., at 682, 

105 SCt [at 3383, 87 LE2d 481]; see also Kyles v. Whitley, 

514 US 419, 433-434, 115 SCt 1555, [1565], 131 LEd2d 

490 (1995). Moreover, the rule encompasses evidence 

“known only to police investigators and not to the 

 prosecutor.” Id. at 438, 115 SCt [at 1568, 131 LEd2d 

490]. In order to comply with Brady, therefore, “the 

 individual prosecutor has a duty to learn of any favorable 

 evidence known to the others acting on the government’s 

 behalf in this case, including the police.” Kyles, 514 US 

at 437, 115 SCt [at 1567, 131 LEd2d 490]. 

Strickler, 527 US at 280-81, 119 SCt at 1948, 144 LE2d 286 (emphasis added). 

[¶19.] Despite the expansion of the Brady doctrine to include cases where the 

defendant made no request for disclosure, “the defendant must still prove that the 

government, in fact, suppressed the evidence in question . . . .” United States v. 

LeRoy, 687 F2d 610, 618 (2dCir 1982), cert. denied, 459 US 1174, 103 SCt 823, 74 

LE2d 1019 (1983) (citation omitted). Still, Brady requirements presuppose that the 

evidence in question is unknown to the defendant or would remain unknown to him 
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after exercising a reasonable diligent effort to discover. State v. Wilde, 306 NW2d 

645, 647 (SD 1981). 

The purpose of the Brady rule is not to provide a defendant 

with a complete disclosure of all evidence in the 

government’s file which might conceivably assist him in 

preparation of his defense, but to assure that he will not 

be denied access to exculpatory evidence known to the 

government but unknown to him. 

Id. (citing United States v. Ruggiero, 472 F2d 599, 604 (2ndCir 1973)); United 

States v. Cravero, 545 F2d 406, 420 (5thCir 1976). “If a defendant knows or should 

know of the allegedly exculpatory evidence, it cannot be said that the evidence has 

been suppressed by the prosecution.” Id. (citing United States v. Brown, 628 F2d 

471 (5thCir 1980)). See also Rodriquez v. Weber, 2000 SD 128, ¶15, 617 NW2d 132, 

139 (quotation omitted); United States v. Payne, 63 F3d 1200, 1208 cert. denied 516 

US 1165, 116 SCt 1056, 134 LEd2d 201 (1996) (recognizing that evidence is not 

suppressed within the meaning of Brady “if the defendant or his attorney” knew, or 

should have known, about the evidence) (emphasis added) (citations omitted). The 

Brady doctrine does not absolve a defendant of his responsibility to discover 

evidence relevant to his defense or sentencing. Wilde, 306 NW2d at 647. 

[¶20.] The findings and the underlying evidence support the conclusion of the 

habeas court that the Fischbach Letter had information that the defense would 

have wanted to know about and that it had been “inadvertently suppressed by the 

State.” The Letter contained Fischbach’s statement that alternative remedies to 

imprisonment would be considered in exchange for Erickson’s immediate peaceable 

surrender. At the time of Erickson’s sentencing, the Fischbach Letter was in the 

possession of the Spink County Sheriff’s Department. The Brady doctrine, as 
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enlarged by Agurs and Kyles, imposed a duty upon the State to learn about the 

existence of this document in the Sheriff’s “Do Not Destroy” evidence file regardless 

of a request by Erickson. See Agurs, 427 US at 107, 96 SCt at 2399, 49 LEd2d 342; 

Kyles, 514 US at 437, 115 SCt at 1567, 131 LEd2d 490. However, as the habeas 

court concluded, this alone was not determinative to its ultimate decision to deny 

Erickson petition. 

[¶21.] On May 26, 2006, Fischbach testified before the habeas court that he 

learned, following Pinok’s first attempt at negotiations, that Erickson had 

specifically asked for Fischbach to draft an agreement setting out the terms, as 

dictated by Erickson, under which he would agree to lay down his arms and 

surrender peaceably. Fischbach left the scene of the standoff with Sheriff Helm and 

returned a short time later with the Fischbach Letter. Pinok testified during his 

deposition that he read the entire Letter aloud to Erickson, and that Erickson 

acknowledged his approval. Pinok also testified that after Erickson surrendered 

and while in his presence he, Pinok, handed the Letter to the chief deputy, who 

then “folded it up and put it into his coat pocked and [told] Jason [Erickson], ‘I’ve 

got it right here.’” 

[¶22.] The foregoing testimony of Fischbach and Pinok establishes 

evidentiary support for the finding of the habeas court that Erickson knew about 

the Fischbach Letter prior to his sentencing. However, Erickson failed to submit 

any evidence that he took any action, at any time between the standoff and 

sentencing, to request the Letter from the State or to inform any of his attorneys 

about the existence of the Letter so that they might request it on his behalf. See
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Wilde, 306 NW2d at 647 (claim of suppression is precluded where defendant fails to 

demonstrate reasonable diligence to discover). Moreover, the fact that McBride, 

post-sentencing, discovered the existence of the Fischbach Letter through his own 

review of the station logs indicates that Erickson’s three other attorneys should 

have been able to discover the existence of the Letter, notwithstanding Erickson’s 

failure to inform. 

[¶23.] Finally, Erickson’s argument that the State suppressed Brady

evidence, thereby violating his right to due process, fails because he cannot show 

that the Fischbach Letter was material to his sentence. We find no reasonable 

probability that the language, “the [S]tate . . . agrees to consider not seeking a 

penitentiary sentence,” would have resulted in a different sentence had the 

Fischbach Letter been disclosed prior to sentencing. 

[¶24.] We find that there is evidentiary support for the habeas court’s 

findings of fact and conclusions of law and therefore, no violation of Erickson’s right 

to due process arising from the State’s inadvertent suppression of the Fischbach 

Letter. 

[¶25.] 2. Whether Erickson was entitled to specific 

 performance of the alleged plea agreement 

 contained in the Fischbach Letter. 

[¶26.] As a matter of equity, Erickson contends that he is entitled to “the 

benefit of his bargain.” Consequently, Erickson avers that his sentence should 

either be vacated or corrected to reflect an agreement that he alleges Fischbach 

entered into with him on behalf of the State. 
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[¶27.] “Generally, plea agreements are contractual in nature and are 

governed by ordinary contract principles.” State v. Waldner, 2005 SD 11, ¶8, 692 

NW2d 187, 190 (quoting State v. Stevenson, 2002 SD 120, ¶9, 652 NW2d 735, 738). 

“Like all contracts, [plea agreements] include[ ] an implied obligation of good faith 

and fair dealing.” Vanden Hoek v. Weber, 2006 SD 102, ¶14, 724 NW2d 858, 862 

(alterations original) (citations omitted). A party is entitled to rescission when his 

consent to a contract is “obtained through duress . . . or undue influence exercised 

by or with the connivance of the party as to whom he rescinds[.]” SDCL 53-11-2(1). 

More specifically, “[p]romises extorted through violence and coercion are no 

promises at all; they are void from the beginning and unenforceable as a matter of 

public policy.” State v. Rollins, 359 A2d 315, 318 (RI 1976) (affirming the decision 

below sustaining the government’s objection to testimony by a prison official 

pertaining to a promise of immunity in exchange for the surrender of the defendant, 

who was engaged in a prison uprising during which a guard had been taken 

hostage). See also People v. Pasch, 604 NE2d 294, 303 (Ill 1992). 

[¶28.] In Pasch, the Illinois Supreme Court affirmed the decision below 

denying the defendant’s motion for specific performance of a promise allegedly 

made by law enforcement during circumstances comparable to the instant case. 

The defendant had killed two persons, taken a hostage and was engaged in an 

armed standoff with law enforcement. Id. at 301. The defendant eventually 

surrendered and thereafter, alleged that negotiators had promised him that if he 

surrendered, the death penalty would not be sought. Id. at 302. In affirming the 
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decision below denying the defendant’s motion for an evidentiary hearing on the 

request for specific performance, the court opined: 

It is clear that defendant did not enter into a plea bargain 

with the State when the police promised him that they 

would not seek the death penalty if he would surrender. 

Defendant never said during the negotiations that he 

would plead guilty to the charges, and the prosecutor 

never accepted a plea in exchange for a lesser sentence 

than death, nor did defendant ever actually plead guilty 

to the charges against him. It is only where a defendant 

enters a guilty plea in reliance upon the promises of a 

prosecutor that he is entitled to a remedy when such promises 

 are breached. Santobello v. New York, 404 US 257, 262, 

92 SCt 495, 499, 30 LEd2d 427 (1971). 

Id. (emphasis added). 

[¶29.] Similar to the alleged promise in Pasch, the Fischbach Letter did not 

constitute a plea agreement. Erickson did not offer to plead guilty; nor were any 

charges discussed. The Letter merely set out consideration that would be accorded 

Erickson if he were to surrender. 

[¶30.] Moreover, had there been an agreement it would have been void from 

the beginning and unenforceable. See supra ¶27 (quoting Rollins, 359 A2d at 318). 

Erickson was engaged in a lengthy standoff with several law enforcement agencies 

that spanned two days. By the accounts of law enforcement testimony, Erickson 

had fired numerous rounds of rifle and shotgun ammunition at them and their 

vehicles during the standoff. It was within the context of this highly volatile and 

dangerous atmosphere that Erickson set out the conditions under which he would 

surrender. Clearly, law enforcement had been subjected to considerable duress 

during this violent and coercive situation. Accordingly, as a matter of public policy 

we agree with the habeas court that under these circumstances there was nothing 
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in the Fischbach Letter that was legally enforceable and the State was in no way 

obligated thereby. 

[¶31.] Affirmed. 

[¶32.] SABERS, KONENKAMP and MEIERHENRY, Justices, concur. 

[¶33.] ZINTER, Justice, concurs specially. 

ZINTER, Justice (concurring specially). 

[¶34.] I disagree with the conclusion that the Fishbach Letter was not 

material. See supra ¶23. Both trial counsel representing Erickson would have used 

it in analyzing the case and negotiating the terms of the plea agreement. Counsel 

would have certainly presented it to the sentencing judge in arguing for an 

appropriate sentence. Nevertheless, as the Court points out, habeas corpus relief is 

not warranted because Erickson had knowledge of the Letter, and therefore it was 

not suppressed.