Gill v. Rieser

Filing 31

AMENDED ORDER re 29 Order Adopting Report and Recommendations. (Written Opinion). Signed by Senior Judge David S. Doty on 3/17/2014. (PJM) (cc: Gill)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-3081(DSD/JJG)
Lee Gill,
Petitioner,
AMENDED ORDER1

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 objection2 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,

1

The court amends its March 3, 2014, order to reflect the
correct date of Gill’s first revocation hearing. The hearing was
held in September 2008. The previous order incorrectly noted that
the hearing was held on September 28, 2010. See ECF No. 29, at 2.
2

Gill also filed a largely-duplicative “motion to vacate” the
report and recommendation. ECF No. 26. The court considers these
two filings in tandem.

record and proceedings herein, and for the following reasons, the
court finds that the report and recommendation correctly disposes
of the petition.

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.
revocation

hearing

See id.
that,

P.M testified at the September 2008
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.

2

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.
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.
remanded

Gill again appealed, and the Minnesota
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

3

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.

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

judge

4

incorrectly

Rather, Gill
analyzed

the

requirements under Brady.

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;
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

P.M.’s

statements to the police.

initial

testimony

and

initial

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).

5

Because the

court

was

aware

of

and

considered

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
Gill’s Brady arguments was unreasonable or contrary to clearlyestablished law, and the objection is overruled.3
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 17, 2014

s/David S. Doty
David S. Doty, Judge
United States District Court

3

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