Hohlen v. Minnesota, State of

Filing 16

ORDER ADOPTING 14 REPORT AND RECOMMENDATION: 1. Petitioner's Objections [Doc. No. 15] to the Magistrate Judge's September 27, 2013, R & R [Doc. No. 14] are OVERRULED; 2. The Court ADOPTS the Magistrate Judge's R & R in its entir ety [Doc. No. 14]; 3. The Petition of Keith Ward Hohlen for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] is DENIED and this action is dismissed with prejudice; and 4. A certificate of appealability is DENIED (Written Opinion). Signed by Judge Susan Richard Nelson on 10/21/13. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Keith Ward Hohlen,

Case No. 12-cv-3138 (SRN/LIB)

Petitioner,
v.

MEMORANDUM OPINION
AND ORDER

Mark J. Herzing, Mille Lacs County
Attorney’s Office,
Respondent.

Keith Ward Hohlen, No. 241638, 970 Pickett Street North, Bayport, Minnesota 550031490, for Petitioner.
Mark J. Herzing and Tara C. Ferguson, Mille Lacs County Attorney’s Office, 225 6th
Street Southeast, Milaca, MN 56353, on behalf of Respondent.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Petitioner Keith Ward Hohlen’s pro se
objections [Doc. No. 15] to Magistrate Judge Brisbois’s Report and Recommendation
(“R & R”) [Doc. No. 14].1 Magistrate Judge Brisbois recommended that Petitioner’s
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] be denied
and the action be dismissed with prejudice [Doc. No. 14]. This Court has conducted a de
novo review of Judge Brisbois’s R & R pursuant to 28 U.S.C. § 636(b)(1)(C) and the
Federal Rules of Civil Procedure 72(b). Based on that review, this Court overrules

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The Court construes Petitioner’s undated letter to Magistrate Judge Brisbois, received
and filed by the Court on September 30, 2013, as his objections to the R & R.

Hohlen’s objections and adopts Judge Brisbois’s R & R for the reasons set forth below.
I.

BACKGROUND

Keith Hohlen is a prisoner confined at the Minnesota Correctional Facility in
Stillwater, Minnesota. (Letter to Magistrate Judge at 1 [Doc. No. 15].) On June 14, 2010,
he was convicted of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1.
State v. Hohlen, No. A11-1880, 2012 WL 3892128 (Minn. Ct. App. Sep. 10, 2012). The
Mille Lacs County Court imposed a presumptive stayed sentence of fifteen months. (Id.
at *5.) The Minnesota Court of Appeals affirmed Hohlen’s conviction and modified his
sentence to twelve months and one day to remedy a procedural error. (Id. at *5-6.)
Hohlen appealed his conviction and modified sentence, and the Minnesota Supreme
Court subsequently denied review. (Pet. at 2 [Doc. No. 1].)
On December 19, 2012, Hohlen filed a Petition for a Writ of Habeas Corpus under
29 U.S.C. § 2254 to challenge his conviction and sentence in the Mille Lacs County
Court. (Id.) In his Petition for relief, Hohlen claims that: (1) his Sixth Amendment rights
were violated because no replacement public defender was appointed after Hohlen
dismissed his first defender; the stand-by counsel appointed at trial was ineffective; and
the public defender appointed during his sentencing offered ineffective advice; (2) newly
discovered evidence can show that the testimony of trial witnesses was false; (3) his right
to due process was violated because he was convicted on insufficient evidence; (4) the
judgment or sentence is “illegal” because the sentence was “amended already” and “is
based on false facts/info”; (5) his conviction contained general constitutional violations;
(6) & (7) constitutional violations occurred because the warrants issued against him were
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illegal; (8) the trial court erred when it denied Hohlen’s request to subpoena a witness;
and (9) the judges and officials in the Minnesota Department of Corrections have
unconstitutionally violated his appeal rights. (Id. at 5, 19, 27, 29, 32, 36, 51, 60, 64 [Doc.
No. 1].) The Court referred the matter to Magistrate Judge Brisbois.
On September 27, 2013, Judge Brisbois issued a R & R recommending that
Hohlen’s Petition be dismissed. (R & R at 1 [Doc. No. 14].) On September 30, 2013,
Hohlen sent a letter to Judge Brisbois objecting to the R & R on the grounds that he is
innocent and any procedural default or failure to exhaust remedies is attributable to his
unfamiliarity with the law. (Letter to Magistrate Judge at 1, 2 [Doc. No. 15].) Under
Local Rule 72.2, this Court will address any timely objection(s) to the R & R.
II.

DISCUSSION

The federal court has the authority to entertain a habeas corpus petition when a
state prisoner’s detention violates the United States Constitution or federal law. 28
U.S.C. § 2254(a). To obtain federal habeas relief, a state prisoner must first exhaust all
state court remedies. Id. § 2254(b)(1)(A). The exhaustion requirement preserves federalstate comity by giving state courts the “initial ‘opportunity to pass upon and correct’
alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275
(1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 249 (1971)). In order to exhaust
all state remedies, a prisoner must “‘fairly present’ his claim in each appropriate state
court (including a state supreme court with the powers of discretionary review), thereby
alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (internal citations omitted).
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The R & R concludes that Hohlen failed to exhaust all available state court
remedies because his federal constitutional claims were not fairly presented to the state
court on appeal. (R & R at 7 [Doc. No. 14].) Hohlen objects to this finding on the
grounds that “this is the first and only time I have been in a trial” and thus “I had and/or
have no idea what or when to do or stay things and/or paper work.” (Obj. at 2 [Doc. No.
15].).
While the Court is sympathetic to the position of a pro se petitioner, ignorance of
the law does not excuse a petitioner’s requirement to exhaust all available state court
remedies. See Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir. 1988) (stating that claims
of procedural ignorance based on a petitioner’s pro se status and educational background
are not sufficient cause for failing to exhaust state-court remedies). For this reason, the
Court finds that Petitioner’s failure to exhaust state court remedies resulted in a
procedural default. To the extent that Hohlen’s letter presents legal questions to the
Court seeking advice on exhaustion requirements, the Court is barred from dispensing
legal advice and cannot address any such inquiries.
In his objection to the R & R, Hohlen states “I do object because of my
innocence” and “I am innocent.” (Obj. at 1, 5 [Doc. No. 15].) It is unclear from these
two statements if Hohlen intends to invoke the legal doctrine of actual innocence. While
a federal court generally cannot review any habeas petition in procedural default, a
narrow exception to this rule allows the court to review an otherwise procedurally barred
petition if the petitioner can prove actual innocence. Collier v. Norris, 485 F.3d 415, 425
(8th Cir. 2007). Actual innocence is a recognized legal doctrine that requires the
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petitioner to present new, reliable evidence of his innocence and show “that it is more
likely than not that no reasonable juror would have convicted him in light of the new
evidence.” Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001).
Even if this Court liberally construes Petitioner’s objections to assert an actual
innocence objection, Hohlen has failed to prove actual innocence because he does not
provide any new, reliable evidence to prove his innocence. Without a showing of “actual
innocence,” Hohlen cannot overcome the procedural bar to his habeas Petition.
Accordingly, Hohlen’s Petition is denied.
Lastly, an applicant for a writ of habeas corpus cannot appeal from a final order
without first securing a certificate of appealability. See 28 U.S.C. § 2253(c). The Court
will grant a certificate of appealability if the applicant has made “a substantial showing of
the denial of a constitutional right.” Id. To meet this statutory threshold, Petitioner must
show “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). The Court concludes that reasonable jurists would not find the issues in
Petitioner’s § 2254 motion debatable, another court would not resolve the issues
differently, and the issues do not deserve further proceedings. Accordingly, the Court
declines to grant a certificate of appealability.
THEREFORE, IT IS HEREBY ORDERED THAT:
1.

Petitioner’s Objections [Doc. No. 15] to the Magistrate Judge’s September
27, 2013, R & R [Doc. No. 14] are OVERRULED;

2.

The Court ADOPTS the Magistrate Judge’s R & R in its entirety [Doc. No.
14];
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3.

The Petition of Keith Ward Hohlen for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 [Doc. No. 1] is DENIED and this action is dismissed with
prejudice; and

4.

A certificate of appealability is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: October 21, 2013

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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