TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, Magistrate Judge Tony N. Leung, on a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Docket No. 1). The action has been referred to the magistrate judge for report and recommendation to the district court under 28 U.S.C. § 636 and Local Rule 72.2(b).
After commencing this action, Petitioner also filed Motion for Preliminary Injunction (Docket No. 9), Motion for Leave to File Amended Complaint (Docket No. 10), Motion to Appoint Counsel (Docket No. 11), and Motion Request for 30 Day Extension (Docket No. 25). All of these motions will be addressed by this Report and Recommendation.
For the reasons stated below, this Court
Petitioner Gary James is an inmate confined at the Minnesota Correctional Facility in Faribault, Minnesota. On January 26, 2009, Petitioner was found convicted on the charge criminal sexual conduct in the second degree, in violation of Minn. Stat. § 609.343, subd. 1(a). See Register of Actions (Docket No. 20). On February 23, 2009, Petitioner was sentenced to a prison term of 70 months. Id.
Petitioner asserts five grounds for relief in this habeas corpus proceeding. They are quoted
Pet. at ¶ 12, Nov. 16, 2011 (Docket No. 1). In addition to the specifically enumerated grounds for relief quoted above, Petitioner seems to assert a fifth ground, which is listed as an "Ineffective Assistance of Appeallet (sic) Counselor" claim that is premised on the
Pet. at ¶ 13.
In addition to his Petition, Petitioner filed the following documents: Appendix to the Petition (Docket No. 2), Letter to Magistrate Judge (Docket No. 12), Appendix to Letter (Docket No. 13), Notice (Docket No. 26), "Petitioner Traverse Answer to Respondent State Petition for dismissal Habeas Corpus Writ" (Docket No. 27), "Notice of Evidence/s Authentic Documentation Attached Document . . . ." (Docket No. 28), Appendix (Docket No. 29), and Appendix (Docket No 30).
In addition to his Petition and the aforementioned documents, Petitioner has also filed numerous motions, including Petitioner's Motion for Preliminary Injunction (Docket No. 9), Motion for Leave to File Amended Complaint (Docket No. 10), Motion to Appoint Counsel (Docket No. 11), and Motion Request for 30 Day Extension (Docket No. 25).
This Court has reviewed all of Petitioner's submissions. As his quoted grounds for relief demonstrate, Petitioner's submissions are difficult to comprehend. This Court is mindful that "district courts must be careful to adjudicate only those claims upon which the petitioner seeks relief and take care not to decide claims upon which the habeas petitioner never intended to seek relief." Frey v. Schuetzle, 78 F.3d 359, 360-61 (8th Cir. 1996). Therefore, consistent with the Rules Governing Section 2254 Cases in the United States District Courts, this Court will only consider Petitioner's claims for habeas relief identified in his Petition (Docket No. 1) and Motion for Leave to File Amended Complaint (Docket No. 10).
The Minnesota Court of Appeals briefly summarized the facts in Petitioner's case as follows:
State v. James, No. A09-1275, 2010 WL 2899115, at *1 (Minn. App. July 27, 2010), rev. denied (Oct. 19, 2010).
Petitioner appealed his conviction to the Minnesota Court of Appeals, asserting four issues for review:
Appellate. Br., at i-ii, Feb. 1, 2010 (Docket No. 20).
As to his first appellate argument, Petitioner cited the Fifth and Fourteenth Amendments of the United States Constitution, as well as the Minnesota Constitution, as the bases for his right to due process. Id. at 13. As to his third appellate argument, Petitioner cited the Fifth Amendment of the United States Constitution, as well as the Minnesota Constitution, as the bases for his right against compelled self-incrimination, id. at 34; Petitioner also cited Wilson v. United States, 149 U.S. 60, 65-66 (1893), for the proposition that an "entirely innocent defendant may prejudice his case by testifying at trial," id. at 34; and, finally, Petitioner cited Lakeside v. Oregon, 435 U.S. 333, 344 (1978), and United States v. Davis, 437 F.2d 928, 933 (7th Cir. 1971), for the proposition that "[a] defendant's silence at his trial is almost certain to prejudice the defense no matter what else happens in the courtroom." Id. at 34-35 (quotation omitted). Petitioner cited state statutes and case law to support all other issues raised in his appellate brief.
On July 27, 2010, relying on state statutes and case precedent, the Minnesota Court of Appeals held that (1) "the prosecutor did not commit misconduct that affected [Petitioner]'s substantial rights," id. at *1-6; (2) "the district court did not abuse its discretion by ruling that [Petitioner] could be impeached by a prior conviction," id. at *6-8; (3) "[t]he no-adverse-inference jury instruction did not affect [Petitioner's] substantial rights," id. at *8-10; and (4) "[Petitioner's] cumulative-error argument is without merit." James, 2010 WL 2899115, at *10.
In addition to those issues raised by counsel, Petitioner filed a pro se supplemental brief with the Minnesota Court of Appeals, arguing
Id. at *10. In support of his ineffective assistance of trial counsel argument, Petitioner cited the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, (1984). Appendix, at 62-63 (Docket No. 20). The Minnesota Court of Appeals held, "primarily based on [Petitioner's] failure to adequately brief these issues and the lack of support in the record for several of the assertions, that the [pro se] issues have been waived on appeal, are unsupported by the record and/or would not entitle [Petitioner] to relief on appeal." James, 2010 WL 2899115, at *10.
Petitioner filed a petition for review with the Minnesota Supreme Court. Petitioner requested review on all issues raised in both his direct and supplemental appellate briefs. Petitioner cited no federal authorities in support of his petition for review. On October 19, 2010, the Minnesota Supreme Court denied his petition.
In March 2011, Petitioner filed in state court a "Notice of Motion Requesting to file a Petition for Postconviction pursuant to Minn. Statute § 590.01," dated March 3, 2011. See Docket No. 13-1, at 24-25; see also Appendix, at 175 (Docket No. 20). This "Notice of Motion" does not reference the substantive grounds of Petitioner's intended motion.
Petitioner filed the present Petition under 28 U.S.C. § 2254 on November 14, 2011. Respondent opposes the Petition.
This Court recommends that Petitioner's Motion for Preliminary Injunction (Docket No. 9) be denied. Petitioner's motion seeks prospective relief in the form of a "temporary restraining order" against Hennepin County employees, "Sgt. Shanblott" and "D. Christainson Duty," "if [his] body is requested on writ in Hennepin County." Id. This is not relief that can be granted under 28 U.S.C. § 2254. See Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) ("If the prisoner is not challenging the validity of his conviction or the length of his detention, such as loss of good time, then a writ of habeas corpus is not the proper remedy.").
Petitioner moves to amend his Petition to include information about a prior conviction from 1996, see State v. James, Case No. 62-KO-96-1529 (Ramsey County, Minn. May 7, 1996), and asks the Court to review the merits of his 1996 conviction in conjunction with the current Petition. This Court recommends that Petitioner's Motion for Leave to File Amended Complaint (Docket No. 10) be denied.
The petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Petitioner may amend his petition "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id.
Petitioner asks this Court to review this prior conviction because it impacted his sentencing on his 2010 conviction. This Court cannot review the substance of his 1996 conviction because it is outside of the one-year limitations period. See 28 U.S.C. § 2244(d)(1). Moreover, the impact of a prior conviction on sentencing is an issue of state law and, therefore, cannot be considered on habeas corpus review. See McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (noting that a challenge to the application of the Minnesota Sentencing Guidelines is a state law claim and barred from federal habeas corpus review). Therefore, Petitioner's Motion for Leave to File Amended Complaint should be denied because the amendments would be futile.
Petitioner brings a Motion to Appoint Counsel (Docket No. 11), arguing that counsel should be appointed because (1) he is unable to afford counsel; (2) "the issues involved in this case are complex"; (3) he has limited access to the law library; (4) no legal assistance agencies have been willing to represent him; (5) he has limited knowledge of the law; (6) he has only a high school education; and (7) he is learning disabled and currently on three psychotropic medications. This Court recommends that Petitioner's Motion to Appoint Counsel (Docket No. 11) be denied.
"[T]here is neither a constitutional nor statutory right to counsel in habeas proceedings; instead, it is committed to the discretion of the trial court." McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). When considering a motion to appoint counsel in a habeas matter, the court considers "the factual and legal complexity of the case, and the petitioner's ability both to investigate and to articulate his claims without court appointed counsel." Id. at 756.
The factual and legal issues in this matter are not so complex or numerous that the appointment of counsel would benefit Petitioner or the Court. Furthermore, his numerous filings demonstrate his ability to prosecute his claims and communicate with the Court and Respondents. Therefore, this Court concludes that Petitioner is capable of self-representation in this matter.
The Response to the Petition was filed on January 27, 2012. Pursuant to this Court's Order, dated November 29, 2011, Petitioner had 30 days from the date of the Response to submit his Reply, if any. See Docket No. 5. On February 23, 2012, Petitioner filed Motion Request for 30 Day Extension to file his Reply. Respondent did not object. Petitioner subsequently filed Petitioner Traverse Answer to Respondent State Petition for Dismissal Habeas Corpus Writ (Docket No. 27). This Court has considered Petitioner's reply and, therefore, his motion should be denied as moot.
Habeas relief is available to a state prisoner if "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Habeas review is limited to adjudications that:
Id. § 2254(d).
A federal court will not entertain a petition for a writ of habeas corpus on behalf of a state prisoner unless the prisoner has first exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). Section 2254(c) provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S. C. § 2254(c). "A district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205 (1982).
Respondent opposes the Petition, arguing that it must be dismissed because it contains exhausted and unexhausted claims. Specifically, Respondent contends that Petitioner has not exhausted his ineffective assistance of appellate counsel claim.
For the reasons set forth below, this Court recommends that the Petition be dismissed without prejudice as a mixed petition to permit Petitioner to exhaust all of his claims prior to bringing a petition under § 2254. Because the Court recommends dismissal on these grounds this Court does not reach Respondent's remaining arguments.
The United States Supreme Court has explained the exhaustion doctrine as follows:
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999). "[O]rdinarily, a state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim, in order to find material, such as a lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 1351 (2004); see Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005) (holding that claim must be "fairly presented" in state court by reference to "a specific federal constitutional right, particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue"). "Therefore, a prisoner must fairly present his federal constitutional claims to the highest available state court, (in Minnesota, the Minnesota Supreme Court), before seeking relief in federal court." Fraction v. Minnesota, 678 F.Supp.2d 908, 916 (D. Minn. 2008).
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the right to effective assistance of counsel on appeal. Bell v. Lockhart, 795 F.2d 655, 657 (8th Cir. 1986) (citing Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 836-37 (1985)). Petitioner contends that he was denied effective assistance of appellate counsel. This claim is referenced throughout Petitioner's filings in this matter. See, e.g., Appendix, at 23-26 (Docket No. 2); "Petitioner Traverse Answer to Respondent State Petition for dismissal Habeas Corpus Writ", at 2 and 8 (Docket No. 27). Nevertheless, this claim was not presented to the Minnesota appellate courts on Petitioner's direct appeal and it was not raised any postconviction proceedings.
"Ground 1" consists of two claims that seem to be grounded in prosecutorial misconduct. Petitioner contends that he was not provided copies of statements made by the victim's father and was not provided information about "who Telephoned & Requested That interview be stopped." Petitioner raised substantially similar prosecutorial misconduct claims in his pro se supplemental brief to the Minnesota Court of Appeals, and these issues were, in turn, presented to the Minnesota Supreme Court. Therefore, Petitioner exhausted these claims.
"Ground 2" consists of two claims of ineffective assistance of trial counsel. Petitioner contends that his trial counsel failed to timely inform the trial court about his mental condition before the incident and failed to call as a witness the investigator who performed at least one interview in the case. While Petitioner raised numerous ineffective assistance of trial counsel claims in his pro se supplemental brief to the Minnesota Court of Appeals, none of these claims pertain to his mental condition before the incident or his trial counsel's failure to call the investigator as a witness. Likewise, Petitioner did not present these claims to the Minnesota Supreme Court. Therefore, Petitioner did not exhaust his ineffective assistance of trial counsel claims.
"Ground 3" consists of two arguments. The first claim—concerning the district court's failure to make a record prior giving a no-adverse inference instruction—mirrors the argument made in both his appellate brief and in his pro se supplemental appellate brief. Thus, the first claim under Ground 3 was exhausted. The second claim is that the "[a]llege[d] victim's testimony was inconsistent."
"Ground 4" consists of a claim that Petitioner's rights under the Confrontation clause were violated when he was not permitted the opportunity to cross examine the individual who referred the victim to CornerHouse to be interviewed. Petitioner raised his Confrontation clause claim in his pro se supplemental brief to the Minnesota Court of Appeals, and this claim was raised to the Minnesota Supreme Court. Therefore, Petitioner exhausted this claim.
This Court concluded that three claims were not exhausted: ineffective assistance of appellate counsel, ineffective assistance of trial counsel, and "[a]llege[d] victim's testimony was inconsistent." For the reasons set forth below, this Court concludes that Petitioner's ineffective assistance of trial counsel and victim's testimony contentions are procedurally defaulted.
When a petitioner has failed fairly to present federal constitutional claims in state court, the federal court must determine whether the state procedural rules would allow a hearing on the merits in a state court proceeding. McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997). If the state's procedural rules would preclude a hearing on the merits, the petitioner has procedurally defaulted and is likewise procedurally barred from obtaining federal habeas relief, unless cause and prejudice, or fundamental miscarriage of justice, can be demonstrated. Id. at 758. A claim that is procedurally defaulted under state law is barred from federal habeas review only if the state procedural rule is "firmly established" and "regularly followed." Oxford v. Delo, 59 F.3d 741, 744 (8th Cir. 1995).
The Minnesota Supreme Court has held "that a defendant who wishes to raise an ineffective assistance of appellate counsel claim need not do so in the very appeal where counsel is representing the defendant, but instead may raise that claim in the next postconviction petition." Townsend v. State, 723 N.W.2d 14, 19 (Minn. 2006) (citing Robinson v. State, 567 N.W.2d 491, 496 (Minn. 1997)). The statute of limitations for bringing a postconviction petition in Minnesota is generally two years. See Minn. Stat. § 590.01, subd. 4. The Minnesota Court of Appeals affirmed Petitioner's conviction on July 27, 2010, and the Minnesota Supreme Court denied his petition for review on October 19, 2010. Therefore, Petitioner has is not procedurally barred from pursuing his ineffective assistance of appellate counsel claim in postconviction proceedings.
Conversely, Petitioner's ineffective assistance of trial counsel and victim's testimony contentions are procedurally defaulted. Under Minnesota's Knaffla doctrine, "[o]nce a [defendant] has taken a direct appeal, all claims raised in the direct appeal as well as `all claims known but not raised' at the time of the direct appeal are barred from consideration in any subsequent petitions for post-conviction relief." Cooper v. State, 745 N.W.2d 188, 190 (Minn. 2008) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). The only exceptions to the Knaffla doctrine are when the claims raised "are so novel that the legal basis was not reasonably available on direct appeal or if fairness requires that we review them and the petitioner did not deliberately and inexcusably fail to raise them on direct appeal." Id. at 191. The Knaffla doctrine is firmly established. It has been in place for over 30 years and is codified in Minn. Stat. § 590.01, subd. 1. See 9 MINN. PRAC., CRIMINAL LAW AND PROCEDURE § 39.1 (3rd ed.) (stating that the Knaffla doctrine is "frequently and strictly applied to deny relief in postconviction proceedings"). Nothing in Petitioner's ineffective assistance of trial counsel and the victim's testimony contentions suggest that they were not known to him at the time of his direct petition. Therefore, this Court concludes that they are procedurally defaulted.
The United States Supreme Court has held: "A district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose, 455 U.S. at 522, 102 S. Ct. at 1205. While the Eighth Circuit Court of Appeals has recognized several exceptions to this general rule,
Rule 11 Governing Section 2254 Cases in the United States District Court requires the district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability cannot be granted, unless the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997). Petitioner has failed to make such a substantial showing. Therefore, with respect to the issues address in this report and recommendation, this Court recommends that the certificate of appealability pursuant to 28 U.S.C. § 2253(c)(3) be denied.
Based upon the record and memoranda,
James, 2010 WL 2899115, at *1.
