Evans v. King et al

Filing 30

ORDER ADOPTING 27 REPORT AND RECOMMENDATION: Petitioner's 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus (Doc. No. 1) is DENIED. Evans' Motion for Leave to Amend his Petition (Doc. No. 25) and request for an evidentiary hearing are DENIED. The action is DISMISSED WITH PREJUDICE. Evans will NOT be granted a Certificate of Appealability (Written Opinion). Signed by Judge Susan Richard Nelson on 9/19/12. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Harry Jerome Evans,
Petitioner,

Civil No. 10-4045 (SRN/SER)

v.
John King, Warden and Joan Fabian,
Commissioner of Department of
Corrections,

ORDER ADOPTING
REPORT AND
RECOMMENDATION

Respondents.

Harry Jerome Evans, pro se, #219265, MCF—Stillwater, 970 Pickett Street North,
Bayport, Minnesota 55003.
Matthew Frank, Esq., Minnesota Attorney General’s Office, 445 Minnesota Street, Suite
1800, Saint Paul, Minnesota 55101; Peter R. Marker and Thomas R. Ragatz, Esqs.,
Ramsey County Attorney’s Office, 50 West Kellogg Boulevard, Suite 315, Saint Paul,
Minnesota 55102, on behalf of Respondents.

SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the undersigned United States District Judge for
consideration of Petitioner Harry Jerome Evans’ Objections (Doc. No. 28) to Magistrate
Judge Steven E. Rau’s July 30, 2012, Report and Recommendation (“R & R”). (Doc.
No. 27.) The Magistrate Judge recommended denial of Evans’ 28 U.S.C. § 2254 Petition
for Writ of Habeas Corpus with prejudice, his Motion for Leave to Amend his Petition,
his request for an evidentiary hearing, and his request for a Certificate of Appealability.
(Doc. No. 27). For the reasons set forth below, Evans’ objections are overruled and the
Court adopts the R & R.
1

I.

BACKGROUND
The factual and procedural background of Evans’ case is well documented in the

Magistrate Judge’s R & R and is incorporated herein by reference.1 Briefly stated, a jury
found Evans guilty of first-degree murder of a peace officer, in violation of Minnesota
Statute § 609.185(a)(4).2 State v. Evans, 756 N.W.2d 854, 862 (Minn. 2008) (hereinafter
“Evans I”). The court sentenced Evans to life in prison without the possibility of release.
Id. On direct appeal in 2008, the Minnesota Supreme Court remanded the case to the trial
court to further develop the record on his juror bias claim and then affirmed the
conviction. Id. at 862–64. In August 2009, a Minnesota state district court denied
Evans’ petition for post-conviction relief. Evans v. State, 788 N.W.2d 38, 41 (Minn.
2010) (hereinafter “Evans II”). The Minnesota Supreme Court affirmed. Id.

1

The Court recites background facts only to the extent necessary to rule on Evans’
Objections. The R & R provides a more comprehensive description of the facts relevant
to Evans’ state case and instant habeas petition. See R & R Dated July 30, 2012 (Doc.
No. 27.) Additionally, the opinions of several courts have detailed the facts of the
underlying crime that lead to Evans’ conviction. See Order Dated August 29, 2011 (Doc.
No. 18); R & R Dated July 29, 2011 (Doc. No. 15); Evans v. State, 788 N.W.2d 38
(Minn. 2010); State v. Evans, 756 N.W.2d 854 (Minn. 2008).
2

Minnesota Statute § 609.185(a)(4) provides, in relevant part:
609.185 MURDER IN THE FIRST DEGREE
(a) Whoever does any of the following is guilty of murder in the first
degree and shall be sentenced to imprisonment for life:
...
(4) causes the death of a peace officer or a guard employed at a Minnesota
state or local correctional facility, with intent to effect the death of that
person or another, while the peace officer or guard is engaged in the
performance of official duties.

Minn. Stat. § 609.185(a)(4).
2

Evans filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on September 24, 2010, alleging (1) denial of a fair trial based on juror bias; (2)
violation of the Confrontation Clause; (3) prosecutorial misconduct and ineffective
assistance of trial and appellate counsel; (4) insufficient evidence to prove the offenses
charged; (5) violation of the privilege against self-incrimination; (6) unconstitutional
search and seizure; (7) denial of Evans’ right to be present at the hearing where lawyers
determined the procedures to be followed with respect to the Schwartz3 hearing; (8)
violation of due process; (9) improper ex parte contact with a juror by the government in
anticipation of the Schwartz hearing; (10) unconstitutional selection of the grand jury and
petit jury; and (11) denial of due process based on new evidence establishing innocence.
(Pet. for Writ of Habeas Corpus, Doc. No. 1, at pp. 5–9); R & R dated July 30, 2012 at
pp. 1–2 n.1 (Doc. No. 27); R & R dated July 29, 2011 at p. 7 (Doc. No. 15).
The Magistrate Judge recommended denial of Evans’ petition for a writ of habeas
corpus on all grounds. R & R dated July 30, 2012 at p. 2 (Doc. No. 27.) Evans objects to
the recommendations. (Objections, Doc. No. 28, at pp. 2–18.) He alleges (1) denial of a
fair trial because of a biased juror, (2) prosecutorial misconduct, and (3) ineffective
assistance of trial and appellate counsel. (Id.) He also objects to the Magistrate Judge’s
denial of his request for a Certificate of Appealability (“COA”). (Doc. No. 29.) The

3

See Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301 (1960).
3

Court adopts those portions of the R & R to which Evans does not object4 and turns to
Evans’ objections.
II.

DISCUSSION
A.

Standard of Review

The district court reviews de novo those portions of an R & R to which an
objection is made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); accord D.
Minn. LR 72.2(b). “If it plainly appears from the [habeas] petition . . . that the petitioner
is not entitled to relief . . . the judge must dismiss the petition . . . .” 28 U.S.C. § 2254, pt.
IV, Ch. 153, R. 4.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prescribes the
standard of review for petitions requesting writs of habeas corpus made by prisoners in
state custody. The relevant portion of AEDPA is 28 U.S.C. § 2254(d), and it provides
that:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
4

Upon the filing of a R & R by a Magistrate Judge, a party may “serve and file
specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2); accord D. Minn. LR 72.2(b). “The objections should specify the portions of
the magistrate judge’s report and recommendation to which objections are made and
provide a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL
4527774, at *2 (D. Minn. Sept. 28, 2008).
4

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The clause “contrary to” means (1) that the state court reached a
conclusion of law in opposition to the holdings of the United States Supreme Court or (2)
failed to reach the same decision as the Supreme Court on a case with materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000); accord Arnold v.
Dormire, 675 F.3d 1082, 1085 (8th Cir. 2012). The “unreasonable application” clause
provides that even if the state court correctly identifies the relevant Supreme Court
principle, a prisoner’s writ may be granted if the state court applied the principle
unreasonably to the facts of the case. Williams, 529 U.S. at 407. “A state court’s
application of clearly established federal law must be objectively unreasonable, not
merely incorrect, to warrant the granting of a writ of habeas corpus.” Jackson v. Norris,
651 F.3d 923, 925 (8th Cir. 2011) (citing Bell v. Cone, 535 U.S. 685, 694 (2002))
(emphasis in original).
A writ of habeas corpus is available as a remedy to a state prisoner only after the
prisoner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1)(A); see
also Banks v. Dretke, 540 U.S. 668, 690 (2004). State court factual findings are
“presumed to be correct,” and this presumption can be rebutted only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).

5

B.

Objections
1.

Denial of Fair Trial Because of a Biased Juror

Evans asserts that the trial court violated his constitutional right to a fair trial
because a biased juror “inflicted it’s [sic] cancerous cells amongst the jury during trial
and during the deliberations.” (Objections, Doc. No. 28, at p. 4.) Evans further asserts
that “the fact that this juror harbored ill feelings towards African Americans while sitting
on the jury of an African American prejudiced Petitioner Evans [sic] constitutionally
protected right to a Fair Trial.” (Id. at p. 5.)
The Magistrate Judge correctly noted that a defendant has a constitutional right to
an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961). The Supreme Court has
held that “the remedy for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215
(1982); see also Remmer v. United States, 347 U.S. 227, 230 (1954) (instructing the trial
court, in an action where the defendant alleged juror bias, to “determine the
circumstances, the impact thereof upon the juror, and whether or not it was prejudicial in
a hearing with all interested parties permitted to participate”). To succeed on a juror bias
claim, a petitioner “must show that the juror was actually biased against him.” Goeders
v. Hundley, 59 F.3d 73, 75 (8th Cir. 1995). To demonstrate actual bias, a petitioner must
show “an impermissible affirmative statement.” Williams v. Norris, 612 F.3d 941, 954
(8th Cir. 2010).
The Minnesota Supreme Court has provided a procedure for requesting such a
hearing. In Schwartz, the Minnesota Supreme Court stated that, in cases of alleged juror
6

bias, the parties should “bring the matter to the attention of the trial court, and, if it
appears that the facts justify so doing, the trial court may then summon the juror before
him and permit an examination in the presence of counsel for all interested parties and
the trial judge under proper safeguards.” 104 N.W.2d at 303.
Federal courts performing habeas review defer to a state court finding of juror bias
if the record fairly supports it. Antwine v. Delo, 54 F.3d 1357, 1369 (8th Cir. 1995). Its
finding is “based upon determinations of demeanor and credibility” and thus entitled to
deference. Wain-Wright v. Witt, 469 U.S. 412, 428 (1985). A state court’s factual
determinations will only be set aside if they lack fair support in the record. See Rushen
v. Spain, 464 U.S. 114, 120 (1983); Flieger v. Delo, 16 F.3d 878, 886 (8th Cir. 1994).
The Minnesota Supreme Court remanded Evans’ case to have the trial court
investigate his juror bias claim. The trial court then granted Evans’ request for a
Schwartz hearing, giving him the opportunity to introduce witnesses and cross-examine
the State’s witnesses, including the allegedly biased juror. Five witnesses testified for the
state that they did not believe the juror was biased. The allegedly biased juror also
testified and denied any bias. The trial court determined that Evans had failed to prove
juror bias by a preponderance of the evidence. Evans I, 756 N.W.2d at 871. The
Minnesota Supreme Court affirmed, explaining that “[t]he district court . . . declined to
find that the juror was dishonest when she answered race-related questions on the jury
questionnaire, and when she said it was not appropriate to use racist language.” Id. at
870. The Magistrate Judge therefore correctly concluded that Evans failed to show that
the state courts’ decisions regarding his biased juror claim were inconsistent with federal
7

law or “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
2.

Prosecutorial Misconduct

Evans objects to the Magistrate Judge’s conclusion that the State’s ex parte contact
with the allegedly biased juror before the Schwartz hearing was not prosecutorial
misconduct. The Magistrate Judge correctly stated that, to prove prosecutorial
misconduct, Evans must show: “(1) the prosecutor’s remarks or conduct were improper,
and (2) the remarks or conduct prejudicially affected the defendant’s substantial rights so
as to deprive him a fair trial.” United States v. Ziesman, 409 F.3d 941, 953 (8th Cir.
2005) (citation and quotations omitted). “[I]t is not enough that the prosecutors’ remarks
[or conduct] were undesirable or even universally condemned . . . . Rather, the relevant
question is whether the prosecutors’ comments [or conduct] so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Mack v. Caspari,
92 F.3d 637, 643 (8th Cir. 1996); cert. denied, 520 U.S. 1109 (1997) (citation and
quotation omitted). Thus, a habeas petitioner “bears the heavy burden of showing that
the alleged improprieties were so egregious that they fatally infected the proceedings and
rendered his entire trial fundamentally unfair. Under this standard, a petitioner must
show that there is a reasonable probability that the error complained of affected the
outcome of the trial—i.e., that absent the alleged impropriety, the verdict probably would
have been different.” Id. at 643 (citation and quotation omitted).
The Magistrate Judge concluded that even assuming that the prosecutor’s ex parte
contact with the allegedly biased juror before the Schwartz hearing was improper, Evans
8

failed to show that it affected his substantive rights to a fair trial. R & R dated July 30,
2012 at p. 31 (Doc. No. 27.) The Magistrate Judge determined that the State had
sufficient evidence proving Evans’ guilt. Id. at p. 39. Witness testimony of Evans’ guilt
was corroborated by a 3M security videotape placing him at the crime scene. Evans II,
788 N.W.2d at 48. Additionally, “[u]pon execution of a search warrant for Evans’
residence, police discovered a pair of jeans with a .38-caliber cartridge, and the bullet
recovered from [the peace officer’s] body was a .38-caliber bullet.” Id. “DNA evidence
[also] linked Evans to the shooting.” Id. The Magistrate Judge correctly determined that
Evans had failed to show that the result of the trial may have been different absent the
prosecutors alleged impropriety.5
3.

Ineffective Assistance of Trial and Appellate Counsel

Evans objects to the Magistrate Judge’s conclusions on his ineffective assistance
of trial counsel and appellate counsel claims. The Magistrate Judge recommended denial
of Evans’ claim of ineffective assistance of trial counsel because it was procedurally
barred by state law. R & R dated July 30, 2012 at p. 18 (Doc. No. 27). Additionally, the
Magistrate Judge determined that Evans’ claim of ineffective assistance of appellate
counsel was meritless. Id.
The Magistrate Judge identified the correct standard for ineffective assistance of
counsel claims. Generally, to establish a constitutional violation of the Sixth Amendment
5

Evans also argues that the allegedly biased juror must have discussed the case
outside the presence of the jury because the “right trial court” was alerted about the juror.
(Objections, Doc. No. 28, at pp. 7–8.) This argument is without merit because Evans
only speculates that such a discussion occurred and he has not shown that any alleged
conversation hampered his ability to receive a fair trial.
9

based on ineffective assistance of counsel, a defendant must demonstrate that (1) the
lawyer’s performance was deficient and (2) the deficiency prejudiced his case. Mickens
v. Taylor, 535 U.S. 162, 166 (2002); Strickland v. Washington, 466 U.S. 668, 694
(1984); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). A lawyer’s
performance is deficient when it falls below the “range of competence demanded of
attorneys in criminal cases.” Strickland, 466 U.S. at 687. A deficiency prejudices a case
when there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Mickens, 535 U.S. at 166 (citation
and quotation omitted).
A petitioner must demonstrate both prongs of the Strickland test to be entitled to
relief and if either prong is unproven, the reviewing court need not analyze the other
prong. Apfel, 97 F.3d at 1076. The United States Supreme Court has recently addressed
the degree of deference due to state court decisions involving ineffective assistance of
counsel claims:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether
that determination was unreasonable—a substantially higher threshold.”
And, because the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not
satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted).
a.

Ineffective Assistance of Trial Counsel

Evans contends that his trial counsel was ineffective because he failed to notify
Evans of an administrative hearing held on September 20, 2007 where the trial court
10

determined the procedures for the Schwartz hearing. At the administrative hearing,
Evans also contends that his counsel was ineffective because he proposed a subpoena
cover letter to be sent to witnesses for the Schwartz hearing which stated, “you may
speak with the attorneys working on this case or with persons who are working with the
attorneys if you are contacted by them and if you wish to speak to them.” Evans I, 756
N.W.2d at 865.
The Magistrate Judge correctly determined that Minnesota’s Knaffla6 rule
procedurally bars Evans’ ineffective assistance of trial counsel claim. A constitutional
claim is procedurally defaulted if it has not been fairly presented in the state courts, and
the state courts will no longer review it because an independent and adequate state
procedural rule precludes further litigation of the claim. Coleman v. Thompson, 501 U.S.
722, 750 (1991). Under Minnesota law, “where direct appeal has once been taken, all
matters raised therein, and all claims known but not raised, will not be considered upon a
subsequent petition for postconviction relief.” Knaffla, 243 N.W.2d at 741. There are
two exceptions to the Knaffla rule: (1) where a claim is so novel that its legal basis was
not reasonably available at the time of direct appeal, or (2) if the defendant did not
deliberately or inexcusably fail to raise the issue in the first appeal and fairness requires
review. Townsend v. State of Minnesota, 723 N.W.2d 14, 18 (Minn. 2006).
Evans failed to raise his ineffective assistance of trial counsel claim in his direct
appeal to the Minnesota Supreme Court even though it was based on the trial record.
Evans II, 788 N.W.2d at 44. The Magistrate Judge correctly found that there would be no
6

State v. Knaffla, 243 N.W.2d 737, 741 (1976).
11

reason to excuse Evans’ procedural default. None of the claims Evans raises are “so
novel that [their] legal basis was not reasonably available at the time of the direct appeal”
and fairness does not require consideration of these claims following Evans’ direct
appeal. Id. Moreover, Evans cannot present compelling evidence that would establish
conclusively that he is innocent and therefore cannot meet the second prong of the
Strickland test. The Magistrate Judge therefore properly concluded that Evans is not
entitled to postconviction relief based on his claim of ineffective assistance of trial
counsel.
b.

Ineffective Assistance of Appellate Counsel

Evans argues that his appellate attorney was ineffective because he failed to
challenge the effectiveness of his trial counsel’s agreement to the language in the cover
letter relating to the Schwartz hearing. The Minnesota Supreme Court determined that
this claim was meritless and the Magistrate Judge concluded that the Minnesota Supreme
Court’s holding was neither contrary to nor an unreasonable application of federal law.
Matters of trial strategy and tactics are not generally the basis for a claim of
ineffective assistance of counsel, absent a tactical decision wholly lacking in reason.
Williams–Bey v. Trickey, 894 F.2d 314, 316 (8th Cir. 1990) (finding no ineffective
assistance of counsel for failure to cross-examine victim witness on certain subjects),
cert. denied, 495 U.S. 936 (1990). Moreover, as set forth in Strickland, “counsel’s
‘strategic choices made after thorough investigation are virtually unchallengeable’ in a
later habeas corpus action.” Moeller v. Weber, 649 F.3d 839, 846 (8th Cir. 2011)
(citation omitted). Counsel is not ineffective under constitutional standards “merely
12

because other lawyers may have used another strategy” or hindsight reveals defects in
counsel’s strategy. Walker v. Lockhart, 852 F.2d 379, 381 (8th Cir. 1988).
The Magistrate Judge correctly concluded that the Minnesota Supreme Court’s
holding was neither contrary to nor an unreasonable application of federal law. The
district court mailed the subpoenas along with the cover letter to five witnesses, including
the allegedly biased juror. Id. at 865. Evans’ counsel received a copy of that letter and
did not object to the district court about its content or that the juror had received it. Id.
The Magistrate Judge appropriately determined that on this record, “applying the
objective standard of reasonableness and the strong presumption that defense counsel’s
decisions were sound trial strategy, the state courts’ determination on this issue was not
unreasonable.” R & R dated July 30, 2012 at p. 28 (Doc. No. 27) (citation and quotation
omitted). Additionally, given the number of witnesses that testified that the juror was not
biased, the Magistrate Judge correctly found that Evans had failed to provide any
evidence that the juror would have testified differently had she not received the letter.
III.

CERTIFICATE OF APPEALABILITY

The Magistrate Judge denied Evans’ request for a COA because it was “unlikely
that any other court, including the Eighth Circuit Court of Appeals, would decide Evans’
claims any differently than they have been decided here.” R & R dated July 30, 2012 at
p. 52 (Doc. No. 27). Evans filed a supplemental brief on August 15, 2012, objecting to
the Magistrate Judge’s denial of a COA. (Pet’r’s Request for COA, Doc. No. 29, at pp.
1–6.)

13

A state prisoner may not appeal the denial of a 28 U.S.C. § 2254 habeas petition
unless he is granted a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). To obtain
a COA, a petitioner must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Such a showing requires the petitioner to “demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). A COA will
not necessarily be granted simply because an appeal is pursued in good faith and raises a
non-frivolous issue. Barefoot v. Estelle, 463 U.S. 880, 894 (1983). Instead, the prisoner
must satisfy a higher standard; he must show that the issues to be raised on appeal are
“debatable among reasonable jurists,” that different courts “could resolve the issues
differently,” or that the issues otherwise “deserve further proceedings.” Flieger v. Delo,
16 F.3d 878, 882–83 (8th Cir. 1994), cert. denied, 513 U.S. 946(1994); see also Lozada v.
Deeds, 498 U.S. 430, 432 (1991).
The Magistrate Judge correctly determined that it is unlikely that any other court
would decide Petitioner’s claims any differently than they have been decided here.
Petitioner has not identified, and the Court cannot discern anything novel or noteworthy
about this case that warrants appellate review.
IV.

CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED that:
1.

Petitioner Harry Jerome Evans’ Objections (Doc. No. 28) to Magistrate
Judge Steven E. Rau’s July 30, 2012, Report and Recommendation (Doc.
14

No. 27) are OVERRULED;
2.

The Report and Recommendation is ADOPTED;

3.

Petitioner’s 28 U.S.C. § 2254 Petition for a Writ of Habeas Corpus (Doc.
No. 1) is DENIED;

4.

The action is DISMISSED WITH PREJUDICE;

5.

Evans’ Motion for Leave to Amend his Petition (Doc. No. 25) is DENIED;

6.

Evans’ request for an evidentiary hearing is DENIED; and

7.

Evans will NOT be granted a Certificate of Appealability.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: September 19, 2012
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

15