Gill v. Rieser
Filing
29
ORDER ADOPTING REPORT AND RECOMMENDATIONS. Adopting 22 Report and Recommendation; Denying 26 Motion to Vacate Order filed by Lee Gill; petitioner's application for writ of habeas corpus 1 is denied. (Written Opinion). Signed by Senior Judge David S. Doty on 3/3/2014. (PJM) CC: Gill. (kt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-3081(DSD/JJG)
Lee Gill,
Petitioner,
ORDER
v.
Bruce Rieser, Warden,
Respondent.
Lee Gill, #203495, MCF-Stillwater, 970 Pickett Street
North, Bayport, MN 55003, pro se.
Matthew Frank, Esq., Jennifer R. Coates, Esq., Minnesota
Attorney General’s Office, Suite 1800, 445 Minnesota
Street, Suite 1800, St. Paul, MN 55101; Thomas A. Weist,
Esq., Hennepin County Attorney’s Office, 300 South Sixth
Street, Suite C-2000, Minneapolis, MN 55487, counsel for
respondent.
This matter is before the court upon the pro se objection1 by
petitioner
Lee
Gill
to
the
August
21,
2013,
recommendation of Magistrate Judge Jeanne J. Graham.
report
and
Gill objects
to the magistrate judge’s recommendation that the court deny his
petition for habeas corpus.
After a de novo review of the file,
record and proceedings herein, and for the following reasons, the
court finds that the report and recommendation correctly disposes
of the petition.
1
Gill also filed a largely-duplicative “motion to vacate” the
report and recommendation. ECF No. 26. The court considers these
two filings in tandem.
BACKGROUND
The background of this matter is fully set forth in the report
and recommendation, and the court summarizes only those facts
necessary to resolve the objection.
In 1994, Gill pleaded guilty
to second-degree murder in Minnesota court. See State v. Gill, No.
A11-133, 2011 WL 3903259, at *1 (Minn. Ct. App. Sept. 6, 2011).
The court sentenced Gill to 306 months imprisonment, but stayed
execution
of
conditions.
the
sentence
See id.
for
30
years,
subject
to
certain
One such condition required Gill to obey all
local, state, and national laws.
See id.
On July 19, 2008, Minneapolis police officers responded to a
domestic disturbance between Gill and his then-girlfriend, P.M.
See id.
As a result of the incident, the state sought to revoke
Gill’s probation.
See id.
P.M testified at the September 28,
2010, revocation hearing that, on the night of the incident, Gill
restrained her, held her arms down and closed his fists as if he
was going to strike her.
See id.
A police officer testified that
P.M. also told him that Gill had placed a pillow over her face and
that she feared for her life.
See id.
Gill testified that P.M.
had accused him of infidelity, that she had stabbed him in the eye
and that he never touched her except to restrain her from leaving
the house to confront a third party.
See id.
Following the hearing, the district court found that Gill had
committed a probation violation and revoked his probation. See id.
2
at *2.
Gill appealed the revocation, and the Minnesota Court of
Appeals remanded for additional findings.
See id.
Consequently,
the district court made additional findings and again revoked
Gill’s probation.
Court
of
Appeals
clarification.
See id.
Gill again appealed, and the Minnesota
remanded
for
a
second
time
for
additional
See id.
At a hearing on the second remand, Gill informed the district
court that P.M., in a previously-undisclosed statement given to
police on July 30, 2008, had partially recanted her previous
statements.
See id. In that statement, P.M. told police that Gill
held her down on the couch to prevent her from leaving, but did not
place his hands on her neck.
previously lying to police.
See id.
P.M. also admitted to
See id. at *5.
After considering all the evidence related to the July 19,
2008, incident - including the recantation - the district court
again revoked Gill’s probation. See id. at *3.
The district court
concluded that, though Gill was not charged, probable cause existed
to charge him with misdemeanor assault, and that Gill had violated
the probation condition requiring him to obey all local, state and
national laws.
See id.
Gill again appealed, arguing in part that
the failure to disclose the recantation amounted to a violation of
his rights under Brady v. Maryland, 373 U.S. 83 (1963).
The
Minnesota Court of Appeals considered the Brady argument and
affirmed the revocation.
Gill, 2011 WL 3903259, at *6.
3
On December 11, 2012, Gill filed a petition for habeas corpus
under 28 U.S.C. § 2254, alleging a deprivation of his due process
rights based on the state’s failure to disclose (1) the recantation
and (2) allegedly-exculpatory photographs. On August 21, 2013, the
magistrate judge recommended that the court deny the petition and
dismiss this matter with prejudice.
Gill objects.
DISCUSSION
The
court
reviews
magistrate judge de novo.
the
report
and
recommendation
of
the
28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b)(3); D. Minn. LR 72.2(b).
A federal court may grant a
state prisoner’s habeas petition if the state court proceeding
resulted in a decision “that was contrary to, or involved an
unreasonable application of, clearly established Federal law” or
“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).
Gill raises no new arguments in his objection.
argues
that
the
magistrate
requirements under Brady.
judge
incorrectly
Rather, Gill
analyzed
the
The magistrate judge correctly noted,
however, that to establish a Brady violation, “[t]he evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
4
and prejudice must have ensued.”
263, 281-82 (1999).
Strickler v. Greene, 527 U.S.
Here, Gill argues that the magistrate judge
incorrectly concluded that he suffered no prejudice as a result of
the failure to disclose the recantation.
Under Brady, however,
prejudice cannot be shown “unless the nondisclosure was so serious
that there is a reasonable probability that the suppressed evidence
would have produced a different” outcome.
Morales v. Ault, 476
F.3d 545, 554 (8th Cir. 2007) (citation and internal quotation
marks omitted).
After a de novo review of the report and recommendation, the
court finds that the magistrate judge correctly resolved the
arguments relating to the alleged Brady violations.
The state
district court, as the factfinder at the revocation hearing,
considered all relevant evidence, including the recantation.
See
Gill, 2011 WL 3903259, at *6. After considering such evidence, the
district
court
credited
statements to the police.
P.M.’s
initial
testimony
and
Such credibility determinations are
within the sound discretion of the factfinder.
See State v.
Spanyard, 358 N.W.2d 125, 127 (Minn. Ct. App. 1984).
court
was
aware
of
and
initial
considered
the
Because the
recantation
in
its
determination, Gill cannot demonstrate that he suffered prejudice
as a result of the inadvertent nondisclosure.
As a result, the
court is not persuaded that the state court’s consideration of
5
Gill’s Brady arguments was unreasonable or contrary to clearlyestablished law, and the objection is overruled.2
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.
Petitioner’s objection [ECF No. 25] to the magistrate
judge’s report and recommendation is overruled;
2.
The magistrate judge’s report and recommendation [ECF No.
22] is adopted in its entirety;
3.
Petitioner’s application for a writ of habeas corpus [ECF
No. 1] is denied;
4.
The motion to vacate [ECF No. 26] is denied;
5.
This action is dismissed with prejudice; and
6.
Pursuant to 28 U.S.C. § 2253(c)(1)(A), the court denies
a certificate of appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
March 3, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
2
The magistrate judge also correctly noted that the claim
relating to allegedly-undisclosed photographs is procedurally
defaulted. As a result, to the extent that Gill persists in that
argument, the objection is overruled.
6
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