Krieger v. Minnesota, State of
Filing
33
ORDER Adopt 26 Report and Recommendation.; denying 28 Motion to Stay; Adopt Report and Recommendation 31 Report and Recommendation. (Written Opinion). Signed by Judge John R. Tunheim on February 4, 2015. (DML) cc: Krieger on 2/4/2015 (LPH).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ERIC DEAN KRIEGER,
Civil No. 13-1942 (JRT/HB)
Petitioner,
MEMORANDUM OPINION
AND ORDER ADOPTING
REPORTS AND
RECOMMENDATIONS
v.
STATE OF MINNESOTA,
Respondent.
Eric Dean Krieger, No. 144143, MCF – Stillwater, 970 Pickett Street
North, Bayport, MN 55003, pro se.
Tara C. F. Lopez, Assistant County Attorney, MILLE LACS COUNTY
ATTORNEY’S OFFICE, 225 Sixth Avenue Southeast, Milaca, MN
56353;, for respondent.
Eric Dean Krieger filed a petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 asserting ten grounds for post-conviction relief. United States Magistrate Judge
Hildy Bowbeer issued two Report and Recommendations (“R&Rs”) on Krieger’s petition
on August 5, 2014 (“August R&R”) and September 5, 2014 (“September R&R”).
(Docket Nos. 26, 31.) In the August R&R, the Magistrate Judge recommended that the
Court deny Krieger’s application for habeas relief. Krieger objected to the August R&R
and filed a motion to stay the habeas corpus petition in order to return to state court. In
the September R&R, the Magistrate Judge recommended denial of this motion to stay.
This matter is before the Court on Krieger’s objections to both R&Rs. Because Krieger
failed to present any of the ten grounds asserted before this Court to the Minnesota
2014F
Supreme Court and the time to do so has now elapsed, these grounds are procedurally
defaulted.
Therefore, the Court will adopt the August R&R, overrule Krieger’s
objections, and dismiss Krieger’s § 2254 petition with prejudice. Additionally, because
Krieger cannot overcome the procedural default of his claims, the Court will adopt the
September R&R, overrule Krieger’s objections, and dismiss Krieger’s motion to stay
these proceedings.
BACKGROUND
I.
STATE COURT PROCEEDINGS
In November 2009, a jury in Mille Lacs County District Court convicted Krieger
of two counts of first-degree criminal sexual conduct in violation of Minn. Stat.
§ 609.342, subd. 1(b), and one count of second-degree criminal sexual conduct in
violation of Minn. Stat. § 609.343, subd. 1(b), for sexual conduct related to a 13-year-old
victim. State v. Krieger, A10-1271, 2011 WL 1642525 at *1 (Minn. Ct. App. May 3,
2011). Krieger appealed the conviction to the Minnesota Court of Appeals in May 2011,
arguing that (1) the Mille Lacs County District Court abused its discretion in excluding
the victim’s child protection file on the grounds that the information within it was not
material and favorable to the defense; (2) a new trial was necessary because the state, on
two occasions, impermissibly implied that Krieger had previously abused the victim; and
(3) the state trial court abused its discretion first, by imposing an upward departure
sentence without articulating substantial and compelling reasons in the sentencing order,
and second, by imposing a sentence in excess of the statutory maximum sentence length
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of 360 months for first-degree criminal sexual conduct. Id. Krieger additionally argued
that (1) his confession was coerced by police, (2) hearsay and testimonial statements were
improperly admitted into evidence against him, (3) he did not receive the benefit of
effective assistance of trial counsel, (4) the State of Minnesota failed to timely notify him
of its intent to seek an aggravated sentence, (5) prosecutorial misconduct tainted the
jury’s deliberation, (6) the state trial court’s sentence was irregular, (7) insufficient
evidence was presented at trial to support his conviction, (8) the mischaracterizing and
sealing evidence in the victim’s 2003 child-protection file amounted to judicial
misconduct, (9) a new trial was warranted based on newly discovered evidence, and
(10) the cumulative effect of trial errors undermined his constitutional right to a fair trial.
Id. at *5–8.
The Minnesota Court of Appeals rejected most of Krieger’s arguments finding
that: (1) the exclusion of relevant information in the victim’s child-protection file was
harmless error, (2) the State’s reference to a previous sexual assault examination of the
13-year-old victim did not implicate Krieger, and (3) the emotional and psychological
injury endured by the victim supported an upward durational departure. Id. at *1–4.
However, the court reduced Krieger’s sentence to 360 months because the state trial
court’s 520 month sentence exceeded the statutory maximum. Id. at *1. Finally, the
Court of Appeals found that each of Krieger’s remaining pro se arguments were without
merit. Id. at *5–8.
Krieger filed a petition for discretionary appeal in the Minnesota Supreme Court
raising two issues: (1) whether the state trial court erred in denying a motion to unseal
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evidence of prior sexual penetration of the victim, and (2) whether the durational
departure sentence was supported by substantial and compelling reasons. (Mem. in
Opp’n to Pet. for Writ of Habeas Corpus, App. 2 (Pet. for Review of Decision of Ct. of
Appeals (“Supreme Ct. Minn. Appeal”)), at 2–3, Oct. 18, 2013, Docket No. 17-2.)
Krieger’s appeal to the Minnesota Supreme Court did not include any of the pro se
arguments submitted to the Court of Appeals. Id. On July 19, 2011, the Minnesota
Supreme Court rejected Krieger’s petition. (Id. at 99.)
In August 2012, Krieger sought post-conviction relief in state court, arguing once
again that: (1) evidence of prior sexual abuse of the victim was improperly sealed and
excluded, (2) the durational departure was improper, (3) his confession was coerced,
(4) insufficient evidence was presented to support a conviction, (5) the representation
amounted to ineffective assistance of appellate counsel, and (6) the cumulative effect of
trial errors warranted a new trial. Krieger v. State, No. A12-1897, 2013 WL 2149985, at
*1 (Minn. Ct. App. May 20, 2013). Additionally, Krieger argued, for the first time, that
the jury instructions encouraged his punishment based on prior bad acts. Id. The state
trial court denied the petition pursuant to the exhaustion rule established in State v.
Knaffla, 243 N.W.2d 737 (1976), and codified in Minnesota Statute section 590.01. Id.
The Knaffla rule establishes that in a petition for post-conviction relief, appellate courts
can decline to review claims that were not raised but could have been raised on direct
appeal.
Berkovitz v. State, 826 N.W.2d 203, 209 (Minn. 2013) (citing Knaffla, 243
N.W.2d at 741). Krieger appealed the state trial court’s denial of post-conviction relief,
raising seven issues. Krieger, 2013 WL 2149985, at *1. The Court of Appeals affirmed,
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holding first that the three issues not raised in Krieger’s petition for post-conviction
relief, but brought to the appellate court, were waived. Id. at *2. An appellate court
“generally will not decide issues which were not raised before the district court[.]” Id.
(quoting Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996)). The Court of Appeals
concluded that that the additional claims in Krieger’s appeal of his denial for postconviction relief were procedurally defaulted under the Knaffla rule. Id. Under the
Knaffla rule, an appeals court may “decline to review claims that were not raised, or
could have been raised, on direct appeal.” Id. (citing Berkovitz v. State, 826 N.W.2d 203,
209 (Minn.2013)).
II.
PROCEDURAL HISTORY
In July 2013, Krieger filed this action in federal court, seeking habeas corpus relief
under 28 U.S.C. § 2254 and asserting ten grounds for relief. (Pet. for Writ of Habeas
Corpus (“Habeas Pet.”), July 19, 2013, Docket No. 1.) 1 First, Krieger claims violations
of the Fifth, Sixth, and Fourteenth Amendments because his confession was allegedly
coerced. (Habeas Pet. at 5; Mem. Supp. Pet., at 15, July 19, 2013, Docket No. 8.)2
Second, Krieger claims a violation of his Fourteenth Amendment rights and due process
because the state trial court allegedly admitted impermissible hearsay and testimonial
1
Where the pagination of Petitioner’s documents differs from the CM/ECF filing, the
Court will refer to the CM/ECF pagination.
2
Krieger sets forth grounds for relief in the supporting memorandum that are not
included in his habeas petition. The Magistrate Judge considered the Petition and supporting
memorandum as one pleading in recognition of Krieger’s pro se status. The Court also adopts
this liberal construction of the pleadings.
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statements.
(Habeas Pet. at 7–8.)
Third, Krieger asserts ineffective assistance of
appellate counsel. (Id. at 8–9.) Fourth, Krieger alleges prosecutorial misconduct in
violation of the Fifth, Eighth, and Fourteenth Amendments. (Id. at 10–12; Mem. Supp.
Pet. at 34–35.) Fifth, Krieger argues that his sentence was unconstitutional. (Habeas Pet.
at 12.) Sixth, Krieger asserts the evidence introduced against him at trial was insufficient
to support a conviction. (Id. at 13.) Seventh, Krieger challenges the use of a “plain
error” instruction in violation of his right to a fair trial. (Id. at 15.) Eighth, Krieger
alleges judicial misconduct pointing to six trial errors including the trial court’s sealing of
evidence in the victim’s child-protection file. (Id. at 16.) Ninth, Krieger asserts his
innocence. (Id. at 18.) Tenth, and finally, Krieger argues that the cumulative effect of
errors throughout his trial prejudiced his defense. (Id. at 19.)
On August 5, 2014, the Magistrate Judge issued an R&R recommending the denial
of Krieger’s petition for habeas relief on all ten grounds asserted and dismissing this
action with prejudice. (August R&R at 9–23) The Magistrate Judge concluded all of the
claims raised in Krieger’s habeas petition under 28 U.S.C. § 2254 were procedurally
defaulted under the Knaffla rule. (Id.) Krieger filed objections to this R&R. (Objections
to R&R (“August Objections”), Aug. 20, 2014, Docket No. 27.) Krieger then filed a
motion to stay his habeas petition to allow the state court to complete exhaustion of all
the unexhausted claims described in the R&R. (Mot. to Stay, ¶¶ 1–2, Aug. 20, 2014,
Docket No. 28.) The Magistrate Judge issued an R&R recommending denial of this
motion because stay and abeyance procedures are not available for procedurally defaulted
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claims.
(September R&R.)
Krieger filed objections to this second R&R as well.
(Objections to R&R (“September Objections”), Sept. 15, 2014, Docket No. 32.)
ANALYSIS
I.
STANDARD OF REVIEW
Upon the filing of a report and recommendation 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 district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3).
II.
KRIEGER’S OBJECTIONS TO THE AUGUST R&R
Before petitioning for a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, giving the state the opportunity to correct any alleged
violations of a prisoner’s rights. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27,
29 (2004). To give the state court the opportunity to assess the alleged violations, “the
prisoner must fairly present his claim in each appropriate state court . . . thereby alerting
that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29 (internal quotation
marks omitted). A federal claim is fairly presented if the petition refers to “a specific
federal constitutional right, a particular constitutional provision, a federal constitutional
case, or a state case raising a pertinent federal constitutional issue in a claim before the
state courts.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (internal quotation
marks omitted). In contrast, a claim has not been fairly presented to a state court when
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“that court must read beyond a petition or a brief (or a similar document) that does not
alert it to the presence of a federal claim in order to find material, such as a lower court
opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Claims may be procedurally
defaulted if they are not fairly presented before the state courts and are no longer
reviewable by the state courts because of the state’s procedural rules. Krikorian v. Beltze,
Civ. No. 09-59, 2009 WL 2591645, at *3 (D. Minn. Aug. 19, 2009).
The Magistrate Judge denied Krieger’s petition for post-conviction relief based on
the “Knaffla rule.” The Knaffla rule states that “[o]nce a [defendant] has taken a direct
appeal, all claims raised in the direct appeal as well as ‘all claims known but not raised’
at the time of the direct appeal are barred from consideration in any subsequent petitions
for post-conviction relief.” Krikorian, 2009 WL 2591645, at *3 (quoting Cooper v. State,
745 N.W.2d 188, 190–91 (Minn. 2008)). Krieger objects to the Magistrate Judge’s
determination that all ten of the grounds for which he asserts habeas relief are
procedurally defaulted under the rule.
A.
Ineffective Assistance of Appellate Counsel
Regarding grounds one, two, three, four, six, seven, and nine, for which Krieger
petitions this Court for habeas relief – coerced confession, impermissible hearsay and
testimonial statements, ineffective assistance of appellate counsel, prosecutor
misconduct, insufficient evidence, plain error instruction, and actual innocence – Krieger
concedes that the assistant state public defender who filed Krieger’s petition for review
did not submit these claims to the Minnesota Supreme Court. (August Objections at 1.)
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Krieger argues that appellate counsel’s failure to include these claims in his Petition for
Discretionary Review before the Minnesota Supreme Court was “ineffective assistance of
counsel.” (Id.) This Court disagrees.
Krieger’s claims cannot be reviewed on the merits unless he is able to demonstrate
either “cause for his default and actual prejudice, or that the failure to consider his claims
would result in a fundamental miscarriage of justice.” McCall, 114 F.3d at 758 (citing
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Krieger personally tendered six of
these seven claims as pro se arguments on direct appeal to the Minnesota Court of
Appeals. Crucially, Krieger was aware that these claims were rejected by the Minnesota
Court of Appeals and failed to reassert them in his Petition for Discretionary Review
before the Minnesota Supreme Court. As a result, his claim is procedurally defaulted
under the Knaffla rule.
Under the Knaffla rule, whether Krieger’s appellate counsel was or was not
effective in deciding not to raise Krieger’s pro se claims or assert actual innocence in
Krieger’s petition to the Minnesota Supreme Court is not dispositive. The Knaffla rule
functions as a complete procedural barrier subject to two exceptions: (1) if a novel legal
issue is presented, or (2) if the interests of justice require review. E.g., Schleicher v.
State, 718 N.W.2d 440, 447 (Minn. 2006). Neither of these exceptions is germane to the
instant case. Krieger’s failure to include the grounds for relief raised in objections one,
two, three, four, six, seven, and nine, when seeking review by the Minnesota Supreme
Court, bars review here.
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B.
Unconstitutional Sentence Determination
Krieger argues that his sentence length is unconstitutional. On direct appeal to the
Court of Appeals, Krieger argued that the trial court abused its discretion by imposing an
upward durational departure sentence for impermissible reasons. (August R&R at 3.)
Krieger reasserted this claim before the Supreme Court, arguing that the sentence of 360
months was not supported by substantial and compelling reasons articulated in the
sentencing order. (Id.) Krieger now argues before this Court that his 360 month sentence
is unconstitutional. Although Krieger made various challenges to the duration of his
sentence in state court, he did not assert unconstitutionality as a basis for relief until he
filed this petition in federal court. Because Krieger failed to raise a claim regarding the
constitutionality of his 360 month sentence before either the Minnesota Court of Appeals
or Minnesota Supreme Court, alerting the courts to the federal nature of the claim, the
Knaffla rule prevents this Court from considering it now.
Krieger argues that his previous challenges to the upward departure presented to
the Minnesota Court of Appeals and Minnesota Supreme Court are substantially similar
to the present constitutional claim. Krieger offers Picard v. O’Connor, 404 U.S. 270
(1971), in support of his argument that the exhaustion doctrine “does not cut so fine a
line” as to preclude different, but substantially, similar claims. (August Objections at 3.)
Krieger’s reliance on Picard is misguided. Although the Picard Court reasoned that
there may be instances in which the ultimate question for disposition “will be the same
despite variations in the legal theory or factual allegations urged in its support,” this
claim does not represent such an occasion. Picard, 404 U.S. at 277. Notably, the Picard
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Court explained that a habeas petition presented to the state court seeking relief under a
specific statutory provision cannot be, under the exhaustion doctrine, aggrandized into a
general constitutional claim. Id.
Similarly, in the instant case, Krieger originally challenged his 360 month
sentence based on the appropriateness of an upward durational departure pursuant to the
Minnesota Sentencing Guidelines. At no juncture did Krieger challenge his sentence
length on federal constitutional grounds before the Minnesota courts. Moreover, the
scope of appellate review of an upward durational departure in Minnesota is limited to
whether the sentencing court’s departure was supported by substantial and compelling
reasons present in the record and articulated in the sentencing order.
Minn. Sent.
Guidelines § 2.D.1. This limited scope of review was applied to Krieger’s upward
durational appeal. Krieger, 2011 WL 1642525, at *4. Krieger appealed his sentence to
the Minnesota courts on this narrow ground and is therefore foreclosed from asking this
Court to apply what amounts to a broad and general review of the constitutionality of his
sentence. Because Krieger failed to present this claim to either the Court of Appeals or
the Supreme Court, the fifth ground for relief is procedurally defaulted under the Knaffla
rule and thus unreviewable by this Court.
C.
Judicial Misconduct Determination
The eighth ground of Krieger’s habeas petition, judicial misconduct, may be
divided into six distinct sub-claims. Krieger avers the state trial court acted improperly
by (1) allowing late discovery, (2) allowing hearsay, (3) denying the motion to suppress
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his confession, (4) using prior criminal history to depart from the Sentencing Guidelines,
(5) showing bias, (6) and mischaracterizing and sealing the evidence in the victim’s 2003
child protection file. (August R&R at 18–19.) Five of the six sub-claims were presented,
pro se, on direct appeal to the Court of Appeals. Krieger, 2011 WL 1642525, at *5–8.
The Magistrate Judge determined that Krieger failed to raise any of these combined
claims in his petition before the Minnesota Supreme Court. (August R&R at 18–21.)
Therefore, the sub-claims are procedurally defaulted under the Knaffla rule. This Court
agrees with the Magistrate Judge that because Krieger failed to present sub-claims one
through six to the Supreme Court, the eighth ground of this habeas petition, judicial
misconduct, is procedurally defaulted under the Knaffla rule.
Therefore, Krieger’s
objection as to the Magistrate Judge’s ruling on ground eight is denied.
1.
Judicial Misconduct as to Sub-Claims One Trough Five
Krieger objects to the Magistrate Judge’s determination regarding sub-claims one
through four, of Krieger’s eighth ground of his habeas petition. These sub-claims were
presented on direct appeal to the Court of Appeals, but not to the Supreme Court.
Krieger, 2011 WL 1642525, at *5–8; (Supreme Ct. Minn. Appeal at 1–10.) These subclaims are procedurally defaulted under the Knaffla rule.
Krieger also argues that the state trial court showed bias during his trial. This
argument was not presented on direct appeal to the Court of Appeals or to the Supreme
Court. Krieger, 2011 WL 1642525; (Supreme Ct. Minn. Appeal at 1–10.) This subclaim is also procedurally defaulted under the Knaffla rule.
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2.
Judicial Misconduct as to Sub-Claim Six
Finally, Krieger argues that the state trial court improperly mischaracterized and
sealed evidence in the victim’s 2003 child protection file. This sub-claim was presented
pro se on direct appeal to the Court of Appeals.
Krieger presented this judicial
misconduct sub-claim on direct appeal to the Court of Appeals as a Fifth and Sixth
Amendment violation. His memorandum to the Court of Appeals also supported his
claim with federal cases. (Mem. in Opp’n Pet., App. 1 (Appellant’s Br. & Addendum
(“Appellant’s Br.”)), at 18, Oct. 18, 2013, Docket No. 17-1.) Additionally, Krieger
offered federal constitutional cases in support of this claim. (Id.)
The Magistrate Judge reasoned this sub-claim was procedurally defaulted under
the Knaffla rule because Krieger’s petition before the Supreme Court “merely allude[d] to
[Krieger’s] ‘constitutional right to due process and a fair trial.’” (August R&R at 20)
(quoting Supreme Ct. Minn. Appeal at 1.) The Magistrate Judge stated that “[s]uch a
reference does not sufficiently raise the federal nature of [the] claim . . . because it does
not refer ‘to a specific federal constitutional right, a particular constitutional provision, a
federal constitutional case, or a state case raising a pertinent federal constitutional issue.’”
(August R&R at 20) (quoting McCall, 114 F.3d at 757). The Court agrees that the claim
was not fairly presented to the Supreme Court because Krieger’s claim asserting the
broad term “due process” did not sufficiently raise a federal issue. Because Krieger did
not raise it before the Supreme Court, this sub-claim is procedurally barred by Knaffla.
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Krieger
argued
before
the
Supreme
Court
that
the
unsealing
and
mischaracterization of the victim’s child-protection-file violated his constitutional right to
due process and a fair trial. However, Krieger failed to connect his general claim of a
constitutional right to due process and a fair trial to a specific constitutional provision.
The Eighth Circuit has consistently held that the fair presentation requirement is not
satisfied by petitioners, such as Krieger, who “make a general appeal to a constitutional
guarantee as broad as due process.” Turnage v. Fabian, 606 F.3d 933, 936 (8th Cir. 2010)
(quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)). Whether Krieger’s due process
argument and fair trial challenges, presented to the Supreme Court, were based on the
Fifth or Fourteenth Amendment Due Process Clause is not ascertainable based on his
habeas filings. Moreover, although the Due Process Clause and right to a fair trial are
federal constitutional provisions, the Minnesota Constitution equally confers due process
and fair trial rights. See Minn. Const. art. I. Whether Krieger presented this judicial
misconduct sub-claim before the Supreme Court based on the federal, as opposed to state,
due process and fair trial provisions is not clear enough to satisfy the fair presentation
requirement. See, Webb v. Webb, 451 U.S. 493, 496–97 (1981) (holding that habeas
petitioners must demonstrate that their due process challenges are based on the federal
constitution and not a comparable state constitutional provision). As the Magistrate
Judge correctly determined, Krieger’s “mere allusions” to his right to due process and a
fair trial did not put the Supreme Court on notice that Krieger was basing this challenge
on either the federal Constitution, a federal constitutional case, or a state case raising a
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pertinent federal constitutional issue, as opposed to comparable and overlapping state
constitutional provisions. (August R&R at 20) (citing McCall, 114 F.3d at 757).
Because Krieger failed to fairly present this judicial misconduct sub-claim as a
claim of federal constitutional relief before the Supreme Court, the claim is defective
under the fair presentation requirement. Accordingly, this sub-claim is procedurally
defaulted under the Knaffla Rule. Therefore, this Court will not entertain Krieger’s
petition for habeas relief on sub-claim six of ground eight.
D.
Denial of Fair Trial by the Cumulative Effect of the Perceived Errors
In ground ten, Krieger argues that he was denied a fair trial by the cumulative
effect of the perceived errors. Krieger presented the cumulative-effect-of-errors claim on
direct appeal to the Court of Appeals. Krieger, 2011 WL 1642525, at *8. However,
Krieger failed to raise this ground in his petition before the Minnesota Supreme Court.
(Supreme Ct. Minn. Appeal at 1–10.) Therefore, this ground is procedurally defaulted
under the Knaffla rule and will not be heard by this Court.
III.
KRIEGER’S OBJECTION TO THE SEPTEMBER R&R
Krieger asked this Court to stay the instant case “in order to [allow him to] return
to state court to complete exhaustion of the unexhausted claims to the Minnesota
Supreme Court.” (Mot. to Stay, at 1, Aug. 20, 2014, Docket No. 28.) The Magistrate
Judge recommended the Motion to Stay be denied because Krieger’s claims are
procedurally defaulted under the Knaffla Rule. (September R&R at 2–3.) Krieger filed
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an objection to the Magistrate Judge’s determination.
The Court agrees with the
Magistrate Judge’s reasoning and will dismiss Krieger’s objections.
The “stay and abeyance” procedure in habeas actions is used when a petitioner
presents a petition including both exhausted and unexhausted claims. Rhines v. Weber,
544 U.S. 269, 277 (2005). A federal district court may stay a habeas action to enable the
petitioner to present unexhausted claims to the state court before returning to federal
court, but the “stay and abeyance” procedure does not apply to claims that are
procedurally defaulted.
Id. at 275–76; Armstrong, 418 F.3d at 926.
Because the
Magistrate Judge determined that Krieger’s claims are procedurally defaulted, Krieger
may only obtain a stay if he can overcome the procedural default of his claims.
Krieger argues that he should be allowed to return to state court because his
appellate counsel’s failure to raise his several pro se claims before the Supreme Court
constituted “ineffective assistance of counsel.” (Mot. to Stay ¶ 2.) Krieger’s argument
cannot overcome the procedural default of his claims, because attorney mismanagement
resulting in procedural default is not cause to excuse the default unless the attorney’s
actions were constitutionally deficient. Armstrong, 418 F.3d at 927. As explained in this
Order, this is a high standard and Krieger has failed to demonstrate that appellate
counsel’s representation was constitutionally deficient. Strickland v. Washington, 466
U.S. 668, 686 (1984). Krieger did not raise an ineffective assistance of counsel claim in
his petition before the Supreme Court; therefore, this claim is procedurally defaulted
under the Knaffla rule. Because the “stay and abeyance procedure” does not apply to
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procedurally defaulted habeas claims, the Court will overrule Krieger’s objections and
deny his motion to stay this habeas petition.
IV.
CERTIFICATE OF APPEALABILITY
The Court may grant a certificate of appealability only where a petitioner has
made a substantial showing of the denial of a constitutional right.
See 28 U.S.C.
§ 2253(c)(2); Copeland v. Washington, 232 F.3d 969, 977 (8th Cir. 2000). To make such
a showing, the issues must be debatable among reasonable jurists, a court must be able to
resolve the issues differently, or the case must deserve further proceedings. See Flieger
v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994). The Court finds it unlikely that another
court would decide the issues raised in Krieger’s motion differently. The Court therefore
concludes that Krieger has failed to make the required substantial showing of the denial
of a constitutional right and denies a certificate of appealability.
ORDER
Based on the foregoing reasons, and all the files, records, and proceedings herein,
this Court OVERRULES Petitioner’s objections [Docket Nos. 27, 32] and hereby
ADOPTS the Reports and Recommendations of the Magistrate Judge [Docket Nos. 26,
31]. Accordingly, IT IS HEREBY ORDERED that:
1.
Petitioner’s Petition for Writ of Habeas Corpus Relief [Docket No. 1] is
DISMISSED WITH PREJUDICE.
2.
Petitioner’s Motion to Stay § 2254 Federal Habeas Corpus to Return to
State Court [Docket No. 28] is DENIED.
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3.
For the purpose of appeal, the Court does not grant a Certificate of
Appealability under 28 U.S.C. § 2253(c).
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: February 4, 2015
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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