Barnes v. Hammer et al

Filing 16

Order Adopting Report and Recommendations 14 ; Denying Petitioner's application for a writ of habeas corpus 1 ; Granting Petitioner a Certificate of Appealability; and Dismissing this matter With Prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by The Hon. Paul A. Magnuson on 09/30/2013. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Danny Kwami Barnes,

Civ. File No. 12-2745 (PAM/SER)
Petitioner,

v.

ORDER

Steve Hammer and the Attorney
General of the State of Minnesota,
Respondents.

This matter is before the Court on Petitioner’s objections to the Report and
Recommendation (“R&R”) of United States Magistrate Judge Steven E. Rau, dated August
29, 2013. In the R&R, Magistrate Judge Rau recommended dismissal of Petitioner’s request
habeas corpus relief and denial of a certificate of appealability. Pursuant to statute, the Court
has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.1(c).
Based on a review of the record and Petitioner’s submissions, the Court concludes that the
R&R is correct and the Petition must be dismissed. The Court will grant Petitioner a
certificate of appealability, however.
A.

Dismissal
The Petition is brought pursuant to 28 U.S.C. § 2254 and raises a challenge to the

validity of Petitioner’s conviction and sentence based on alleged ineffective assistance of
counsel before trial. Petitioner specifically contends that his lawyers were ineffective in
advising him not to take a 36-month plea deal, proclaiming that he had a good chance of
being acquitted at trial, and predicting that he would receive a 46-month sentence if

convicted. Petitioner was ultimately convicted on all charges against him and the trial court
sentenced him to a 138-month term of imprisonment.
Petitioner first challenged his counsel’s pre-trial representation before the trial court,
which held an evidentiary hearing on the issue. The trial court determined that Petitioner’s
counsels’ advice was not objectively unreasonable and that Petitioner was not prejudiced by
any alleged shortcomings in their representation. The trial court specifically noted that the
evidence showed that Petitioner knew that he faced 15 to 25 years’ imprisonment and that
he willingly rejected the 36-month plea offer. Based on the record presented during the
hearing, the trial court concluded that Petitioner was interested in pleading guilty only if he
could secure a leniency deal for one of his co-defendants. When the prosecution rejected
Petitioner’s proposed caveat, Petitioner rejected the plea deal and proceeded to trial. The
trial court determined that Petitioner’s failed caveat severed any possible link between
counsel’s conduct and Petitioner’s decision not to plead guilty.
Petitioner appealed the trial court’s ruling and the Minnesota Court of Appeals
affirmed. The court of appeals did not address whether Petitioner’s counsel met the
applicable standard of care, but agreed with the trial court that Petitioner was not prejudiced
in any event.
Petitioner sought review from the Minnesota Supreme Court, which denied his
Petition for Review. Petitioner then filed the instant Petition seeking relief under 28 U.S.C.
§ 2254(d). Following full briefing and a thorough review of the record, Magistrate Judge
Rau recommends that the Petition be denied because the record does not support a finding

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that Petitioner was prejudiced by his counsel’s advice, even assuming that advice was
flawed.1
Petitioner objects to Magistrate Judge Rau’s recommendation on the grounds that the
R&R fails to address 28 U.S.C. § 2254(d)(2), which requires an analysis of whether the state
court’s decision “was based on an unreasonable determination of the facts in light of the
evidence presented[.]” (Pet’r’s Obj. (Docket No. 15) at 2.) Although Petitioner is correct
that the R&R’s analysis focuses on § 2254(d)(1),2 the R&R also addresses § 2254(d)(2) and
undertakes a detailed analysis of the facts relied on by the state court, as required.
Petitioner also contends that the Magistrate Judge unreasonably determined the facts
relied on by the state court in concluding that he was not prejudiced by his counsel’s advice.
For the reasons stated in the R&R, the record amply supports the R&R’s determination that
Petitioner has failed to establish the requisite prejudice.
B.

Certificate of Appealability
This Court may grant a COA if the prisoner “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). “Good faith and lack of frivolousness, without more, do not
serve as sufficient bases for issuance of a certificate.” Kramer v. Kemna, 21 F.3d 305, 307

1

Magistrate Judge Rau appropriately did not address whether Petitioner’s counsel
provided objectively reasonable legal advice because the state court of appeals did not
address that issue.
2

Section 2254(d)(1) provides relief when the state court’s adjudication “was contrary
to, or involved an unreasonable application of, clearly established federal law[.]”
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(8th Cir. 1994). 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) (citing Lozado v. Deeds,
498 U.S. 430, 432 (1991) (per curiam)); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
When a district court grants a COA, it is “inform[ing] the Court of Appeals that the petitioner
presents a colorable issue worthy of an appeal.” Kruger v. Erickson, 77 F.3d 1071, 1073 (8th
Cir. 1996) (per curiam); see also Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000) (granting
a COA signifies that the issues raised “‘deserve encouragement to proceed further’”)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).
Although the Court is convinced that its decision is correct, Petitioner has succeeded
in showing that reasonable jurists could differ as to whether he has a viable claim for
ineffective assistance of counsel. Thus, the Court will grant a COA on that ground.
C.

Conclusion
For the reasons stated above and in the R&R, Petitioner has failed to establish a claim

under 28 U.S.C. § 2254(d). Accordingly, IT IS HEREBY ORDERED that:
1.

Petitioner’s application for a writ of habeas corpus (Docket No. 1) is
DENIED;

2.

Petitioner is GRANTED a Certificate of Appealability; and

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3.

This matter is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: September 30, 2013

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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