Prewitt v. Reiser
Filing
41
MEMORANDUM OPINION AND ORDER adopting Report and Recommendations re 33 Report and Recommendation; Affirming District Court Decision 24 28 38 ORDER RE: APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION denying appointment of counsel and denying a motion for reconsideration to District Judge; Affirming District Court Decision 35 [ORDER RE: APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION dated February 19, 2013 to District Judge; dismissing petitioner's 1 petition for writ of habeas corpus(Written Opinion). Signed by Judge John R. Tunheim on October 20, 2014. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FREDDIE JAMES PREWITT,
Civil No. 13-2866 (JRT/LIB)
Petitioner,
v.
MEMORANDUM OPINION
AND ORDER
BRUCE REISER, Warden, D.O.C.
Minnesota,
Respondent.
Freddie James Prewitt, No. 137814 MCF-Faribault, 1101 Linden Lane,
Faribault, MN 55021, pro se.
Jean E. Burdorf, Assistant Hennepin County Attorney, HENNEPIN
COUNTY ATTORNEY’S OFFICE, 300 South Sixth Street, Suite A2000, Minneapolis, MN 55487, for respondent.
On October 18, 2013, Freddie James Prewitt, a prisoner of the State of Minnesota,
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his
state conviction for third-degree criminal sexual conduct was in violation of his federal
constitutional rights. This matter is before the Court on Prewitt’s appeal from orders
issued by United States Magistrate Judge Leo I. Brisbois denying his motions for
appointment of counsel, leave to amend his petition, and leave to supplement the record.
Prewitt has also filed objections to a Report and Recommendation (“R&R”) issued by the
Magistrate Judge recommending that the Court dismiss Prewitt’s petition with prejudice.
Because the Magistrate Judge’s orders are neither clearly erroneous nor contrary to law,
the Court will overrule Prewitt’s objections and affirm those orders. With respect to
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Prewitt’s habeas petition, the Court concludes that the petition fails to allege a basis for
habeas relief, and the Court will therefore overrule Prewitt’s objections and adopt the
R&R in its entirety, dismissing Prewitt’s habeas petition with prejudice.
BACKGROUND
I.
UNDERLYING CONVICTION AND APPEAL
The State of Minnesota charged Prewitt with third-degree criminal sexual conduct
for having sex with a helpless victim in violation of Minn. Stat. § 609.344, subd. 1(d), in
connection with a May 2011 incident when Prewitt allegedly had vaginal and anal sex
with a woman who was unconscious as a resulting of taking heroin. State v. Prewitt,
No. A12-1456, 2013 WL 3491078, at *1 (Minn. Ct. App. July 15, 2013). On April 9,
2012, a jury found Prewitt guilty of this crime, and Prewitt was sentenced to 153 months
imprisonment. (Pet. for Writ of Habeas Corpus (“Pet.”) at 1, Oct. 18, 2013, Docket
No. 1.); see also Prewitt, 2013 WL 3491078 at *1.
Prewitt appealed his conviction and the Minnesota Court of Appeals affirmed.
Prewitt, 2013 WL 3491078 at *1. On appeal, Prewitt raised three primary grounds for
reversal; each was rejected by the court. First, Prewitt argued that the trial court had
erred in allowing him to proceed to trial pro se, because he had not knowingly waived his
right to counsel. Id. at *4. The court found, however, that Prewitt’s waiver of his right to
counsel was valid because Prewitt had chosen to proceed pro se even after the trial court
had outlined the elements of Prewitt’s offense, told him the presumptive sentence,
discussed defense-strategy options with Prewitt, and “repeatedly warned Prewitt about
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the dangers of proceeding pro se, emphasizing that he would be held to the same
standards as an attorney and highlighting the difficulties of challenging certain evidence
without expert legal and scientific assistance.” Id. at *5. Second, Prewitt argued that the
prosecutor committed misconduct in her closing argument when she told the jury that the
victim had been forced “to face ‘her rapist’ in trial,” and thereby suggested that the jury
should punish Prewitt for exercising his right to go to trial. Id. at *5-6. Applying a plain
error standard of review because Prewitt had failed to object to these comments at trial,
the court concluded that the prosecutor’s statements were properly made in the context of
demonstrating the credibility of the victim’s testimony.
Id. at *6.
Third, “Prewitt
assert[ed] that the district court departed from its constitutionally required impartiality by
giving him legal advice, threatening to hold him in contempt, and questioning a witness.”
Id. at *6. Although the court found that the trial court had exceeded its role as a neutral
arbiter when it questioned one of the state’s witnesses “effectively helping a witness for
the state to clarify her testimony in a manner that ordinarily would be left for the
prosecutor to do,” it concluded that this did not constitute clear error, and therefore
reversal was not warranted. Id. at *7-8. Finally, the court reviewed “a host of additional
evidentiary issues” raised in Prewitt’s pro se brief, and concluded “that none of them
warrants detailed discussion or supports reversal.” Id. at *8. After his conviction was
affirmed, Prewitt filed a petition for review, which the Minnesota Supreme Court denied.
(Pet. at 2.)
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II.
HABEAS PETITION
On October 18, 2013, Prewitt filed a petition for a writ of habeas corpus. In his
petition Prewitt raised ten grounds for relief: (1) failure to obtain a valid wavier of
Prewitt’s right to counsel; (2) prosecutorial misconduct in closing arguments;
(3) deprivation of his constitutional right to an impartial trial judge; (4a) failure to appoint
advisory counsel; (4b) failure to provide discovery; (4c) admission of inadmissible
hearsay; (4d) insufficiency of the evidence; (4e) deletions from the official trial
transcript; (4f) improper charge to the jury; and (4g) failure to provide a jury of his peers.
(Pet. at 5-10.)
III.
MOTION FOR APPOINTMENT OF COUNSEL
On the same day that he filed his habeas petition, Prewitt filed a motion to appoint
counsel. (Mot. to Appoint Counsel, Oct. 18, 2013, Docket No. 3.) The Magistrate Judge
denied the motion, finding “that neither the facts nor the legal issues raised in the petition
are so complex as to warrant appointment of counsel,” and that “it appears that [Prewitt]
has the threshold ability to articulate his claims, to argue his positions, and to
communicate effectively with the Court.” (Order at 2, Oct. 21, 2013, Docket No. 5.)
Prewitt then filed a motion for reconsideration asking the Magistrate Judge to
reconsider his denial of Prewitt’s motion because Prewitt reads at a sixth-grade level and
“suffers major depression and bipolar disorder.” (Mot. for Reconsideration at 1, Nov. 5,
2013, Docket No. 7; see also Exhibit at 1, Nov. 5, 2013, Docket No. 8; Notice for Aff. of
Facts, Nov. 5, 2013, Docket No. 9.) The Magistrate Judge denied this motion, noting that
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the proper way to seek review of the denial of the motion to appoint counsel was “by
seeking review by the District Court.” (Order at 2, Dec. 6, 2013, Docket No. 17.) The
Magistrate Judge further noted that the documentation of Prewitt’s “low educational
achievement” did not demonstrate that Prewitt would be unable “to articulate his claims,
to argue his positions, and to communicate effectively with the Court,” and therefore did
not warrant the appointment of counsel. (Id. at 3.) Prewitt filed two appeals to this Court
from this order, as well as an affidavit of facts, arguing that the Court should appoint
counsel. (Appeal, Dec. 18, 2013, Docket No. 24; Appeal, Jan. 13, 2014, Docket No. 28;
Aff. of Facts Regarding Pending Appeal, July 11, 2014, Docket No. 38.)1
IV.
MOTION TO AMEND AND SUPPLEMENT RECORD
On January 13, 2014, Prewitt brought a motion to amend his habeas petition,
(Mot. to Amend, Jan. 13, 2014, Docket No. 27), and also brought a motion which
requested, among other relief, the right to supplement the record (Appeal, Jan. 13, 2014,
Docket No. 28). The Magistrate Judge construed Prewitt’s motion to amend as “seeking
to supplement his Reply memorandum with material relating to his objections at trial to
the use of out-of-court statements,” and allowed him to supplement the record with the
portions of the transcript identified in the motion. (Order at 3, Feb. 4, 2014, Docket
No. 29 (emphasis omitted).) The Magistrate Judge also granted Prewitt’s motion to
1
One of these appeals also included another request for reconsideration of the denial of
his motion to appoint counsel, (see Appeal at 10, Jan. 13, 2014, Docket No. 28) which was again
denied by the Magistrate Judge (Order at 4, Feb. 4, 2014, Docket No. 29).
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supplement the record, allowing him to supplement his argument with regard to his claim
regarding waiver of the right to counsel at trial. (Id. at 3-4.)
Thereafter, Prewitt filed another motion to amend his petition, (Am. Pet., Feb. 11,
2014, Docket No. 30), and another motion to supplement his reply and the record, (Aff.
of Freddie James Prewitt-Bey, Feb. 14, 2014, Docket No. 31). The Magistrate Judge
denied both of these motions. (Order, Feb. 19, 2014, Docket No. 32.) The Magistrate
Judge denied the motion to amend on both procedural and substantive grounds. (Id. at 6.)
First, the Magistrate Judge concluded that Prewitt’s filing failed to comply with the Local
Rules in that he had not provided the Court with an explanation of how his amended
pleading differed from his original petition. (Id. at 6-7.) The Court also concluded that
amendment would be futile, would prejudice the state, and would cause undue delay. (Id.
at 7-11.)
Specifically, the Magistrate Judge noted that Prewitt’s motion to amend
appeared to add “one entirely new theory for granting habeas relief that was not asserted
in his original habeas petition: ‘that the state statute that he was charge[d] with was
unconstitutional’” and also reasserted some of the claims already made in the original
petition. (Id. at 7 (alteration in original) (quoting Am. Pet. at 1, Feb. 11, 2014, Docket
No. 30).) The Magistrate Judge explained that amendment to include the new claim
would be futile because it was a claim that had not been exhausted in Minnesota state
courts and therefore was procedurally defaulted. (Id. at 8-9.) The Magistrate Judge also
concluded that amendment would cause undue delay and prejudice the state, as the merits
of Prewitt’s habeas petition had already been fully briefed by the state. (Id. at 10-11.)
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With respect to the second motion to supplement the reply and the record, the
Magistrate Judge concluded that Prewitt was merely attempting, again, to supplement the
record in support of his existing arguments, had already “been given multiple
opportunities to present to the Court his arguments and an evidentiary record to support
his arguments,” and had offered “no explanation as to why the Court should consider
accepting these late materials, which were filed approximately two months after he filed
his Reply.” (Id. at 12-13 (emphasis in original).) Accordingly, the Magistrate Judge
denied the motion. (Id. at 13.) Prewitt filed an appeal from this Order. (Aff. of Facts,
Mar. 31, 2014, Docket No. 35.)
V.
R&R
On February 19, 2014, the Magistrate Judge issued an R&R recommending that
the Court deny a request for discovery that Prewitt had raised in his reply to the state’s
response to his petition and dismiss Prewitt’s petition with prejudice. (R&R, Feb. 19,
2014, Docket No. 33.)
With respect to discovery, the Magistrate Judge noted that “Prewitt seeks
discovery of information that he alleges was hidden by the prosecutor, including hospital
records and ‘supplemental discovery.’”
(Id. at 2 (quoting Pet’r’s Reply to Resp’ts
Answer to Pet. at 1, Dec. 18, 2013, Docket No. 19).) The Magistrate Judge explained
that this discovery likely related to Prewitt’s claim of insufficiency of the evidence, based
on his contention that the sexual assault examining nurse that had examined the victim
did not assess any external or internal injuries on the victim and that “‘sexual assault is an
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intent Crime and requires proof of an injury.’” (Id. at 3 (quoting Pet’r’s Reply to Resp’ts
Answer to Pet. at 0-1, 11).) The Magistrate Judge concluded, however, that discovery of
hospital records would not demonstrate that Prewitt was entitled to relief because
“[e]vidence that the victim did not have injuries is largely immaterial, given that the
victim was asleep and not resisting during the rape, and Prewitt’s DNA sample matched
the DNA in the semen in the victim’s body.” (Id. at 4.) The Magistrate Judge also noted
that Prewitt sought transcripts of the police officer who prepared police reports that
contained the allegedly inadmissible hearsay of the victim’s friend. (Id.) Because the
victim, not the police officer, had introduced the contested statements of the victim’s
friend at trial the Magistrate Judge concluded that good cause did not exist to order
discovery “as it is not likely to demonstrate Prewitt’s entitlement to relief on any claim.”
(Id.)
With respect to Prewitt’s waiver of the right to counsel claim, the Magistrate
Judge concluded that the Minnesota Court of Appeals’ determination that Prewitt’s
waiver of the right to counsel was constitutionally valid was not unreasonable “given the
trial court’s repeated warnings of the specific obstacles Prewitt would encounter in selfrepresentation, and Prewitt’s unwavering assertion of his right and ability for selfrepresentation.” (Id. at 10.)
The Magistrate Judge also concluded that the Minnesota Court of Appeals had
applied the proper standard in evaluating Prewitt’s prosecutorial misconduct claim. (Id.
at 10-12.) Specifically, the Magistrate Judge noted that for purposes of such a claim
“‘[t]he relevant question is whether the prosecutors’ comments so infected the trial with
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unfairness as to make the resulting conviction a denial of due process.’” (Id. at 12
(internal quotation marks omitted) (quoting Darden v. Wainwright, 477 U.S. 168, 18[1]
(1986)).
As for Prewitt’s right to an impartial tribunal claim, the Magistrate Judge
concluded that the Minnesota Court of Appeals reasonably found that the trial judge had
acted impartially when he gave Prewitt advice about a consent defense and threatened to
hold Prewitt in contempt for misconduct during trial. (Id. at 15-16.) The Magistrate
Judge also concluded that although the trial court had exceeded its role as a neutral
arbiter when it questioned the state’s witness, the Minnesota Court of Appeals reasonably
concluded that this error did not rise to the level of a constitutional error, especially in
light of the “overwhelming evidence against Prewitt.” (Id. at 16.)
Finally, the Magistrate Judge considered Prewitt’s multi-part fourth ground for
relief. The Magistrate Judge concluded that, with the exception of the claim based on
admission of inadmissible hearsay, the claims in Prewitt’s fourth ground for relief are
procedurally defaulted because “Prewitt did not fairly present the federal nature of his
multiple claims” to the Minnesota Court of Appeals.
(Id. at 16-17.)
As for the
inadmissible hearsay claim, the Magistrate Judge concluded that Prewitt had fairly
presented the federal nature of this claim under the Confrontation Clause by citing the
Sixth Amendment and Crawford v. Washington, 541 U.S. 36 (2004) in his pro se brief to
the Minnesota Court of Appeals. (Id. at 18.) Although the Minnesota Court of Appeals
had not explicitly addressed this claim, the Magistrate Judge concluded that the court
reasonably could have found that the statements of the victim’s friend admitted at
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Prewitt’s trial “were not testimonial [and] therefore not protected by the Confrontation
Clause, because the statements were made by the victim’s friend to the victim on the
morning after the alleged rape, before any police investigation was started.” (Id. at 19-20
(citing Prewitt, 2013 WL 3491078 at *1).) Because Prewitt had failed to raise viable
grounds for relief, the Magistrate Judge recommended that the Court dismiss Prewitt’s
habeas petition with prejudice. (Id. at 21.)
Prewitt filed several documents which
purport to be objections to the R&R. (Objection, Feb. 28, 2013, Docket No. 34; Aff. of
Facts, May 15, 2014, Docket No. 36; Am. Aff. of Facts, May 19, 2013, Docket No. 37.)
ANALYSIS
I.
APPOINTMENT OF COUNSEL
A.
Standard of Review
The standard of review applicable to an appeal of a Magistrate Judge’s order on
nondispositive pretrial matters is extremely deferential.
Roble v. Celestica Corp.,
627 F. Supp. 2d 1008, 1014 (D. Minn. 2007).2 This Court will reverse such an order only
if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a); D. Minn. LR 72.2(a)(3). “A finding is clearly erroneous when ‘although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.’” Lisdahl v. Mayo Found., 633
F.3d 712, 717 (8th Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564,
2
Motions to appoint counsel are nondipositive motions, subject to the standard of review
identified in 28 U.S.C. § 636(b)(1)(A). See In re Lane, 801 F.2d 1040, 1042 (8th Cir. 1986)
(noting that a decision not to appoint counsel was a nondispositive, pretrial motion).
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573 (1985)). “A decision is contrary to law when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Knutson v. Blue Cross & Blue Shield of Minn,
254 F.R.D. 553, 556 (D. Minn. 2008) (internal quotation marks omitted).
B.
Standard for Appointment of Counsel
There is no constitutional or statutory right to the appointment of counsel in
habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987); McCall v.
Benson, 114 F.3d 754, 756 (8th Cir. 1997). In considering a motion to appoint counsel
[t]he trial court has broad discretion to decide whether both the plaintiff and
the court will benefit from the appointment of counsel, taking into account
the factual and legal complexity of the case, the presence or absence of
conflicting testimony, and the plaintiff’s ability to investigate the facts and
present his claim.
Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996).
Prewitt objects to the Magistrate Judge’s conclusion that appointment of counsel
was not warranted based on the facts and circumstances presented by Prewitt’s habeas
proceeding.3 Prewitt argues that he “is unable to articulate the issues in his appeal
3
The first document filed by Prewitt was a timely appeal from the Magistrate Judge’s
denial of Prewitt’s motion for reconsideration, being filed within fourteen days of that ruling.
(See Appeal, Dec. 18, 2013, Docket No. 24.); see also D. Minn. LR 72.2(a)(1) (explaining that
with respect to nondispositive matters “[a] party may file and serve objections to the order within
14 days after being served with a copy”). The second and third documents filed by Prewitt
directly related to the Magistrate Judge’s denial of his motion to appoint counsel were, however,
untimely. (See Appeal, Jan. 13, 2014, Docket No. 28; Aff. of Facts Regarding Pending Appeal,
July 11, 2014, Docket No. 38.) But “‘the deadline for filing objections is not jurisdictional, and
late-filed objections can be considered where the filing is not egregiously late and causes no
prejudice to any adverse party.’” United States v. Buchanan, Civ. No. 07-50118, 2008 WL
2704865, at *2 (D.S.D. July 7, 2008) (quoting 32 Am. Jur. 2d Federal Courts § 145); D. Minn.
LR 72.2(a)(3) (providing only that “[t]he district judge must consider timely objections” but not
restricting the Court’s ability to consider untimely objections, and expressly providing that “[t]he
(Footnote continued on next page.)
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adequate to assist the Court in ascertaining the gist of his communications” because he
“has an extremely low educational level with scores equivalent to a sixth grade
education.” (Appeal at 2, Dec. 18, 2013, Docket No. 24; see also Appeal at 4, Jan. 13,
2014, Docket No. 28.)
For example, Prewitt explains that he “does not have the
capability to request Discovery under the proper rules.” (Appeal at 2, Dec. 18, 2014,
Docket No. 24; see also Aff. of Facts Regarding Pending Appeal at 1, July 11, 2014,
Docket No. 38.) Prewitt contends that the Magistrate Judge “did not fully appreciate the
seriousness of [Prewitt]’s need for counsel” because up to this point in the litigation
Prewitt has been “assisted by other inmates,” but those inmates are not guaranteed to be
available to continue to assist Prewitt as the litigation progresses. (Appeal at 2, Dec. 18,
2013, Docket No. 24.)
The Court concludes that the Magistrate Judge did not err in finding that
appointment of counsel is not warranted in this case. Specifically, the Magistrate Judge
found that neither the facts nor the legal issues raised in Prewitt’s habeas petition are so
complex as to require the appointment of counsel. Contrary to Prewitt’s contention, in
the numerous documents filed in this case to date, he has demonstrated an ability to
articulate the relief he seeks and the factual and legal basis for his claims. Specifically,
____________________________________
(Footnote continued.)
district judge may also reconsider on his or her own any matter decided by the magistrate judge
but not objected to” (emphasis added)). Here, the Court finds that Prewitt’s late filings are not
particularly egregious given the complicated procedural posture of his attempts to have counsel
appointed. The late filings are also largely duplicative of his timely filings, indicating that it is
unlikely that such filings have prejudiced the state. Therefore, the Court has considered all of
Prewitt’s filings regarding the motion to appoint counsel collectively.
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although Prewitt argues that he does not have the capability to seek discovery, the
Magistrate Judge found that Prewitt had indeed raised a request for discovery in his reply,
and carefully considered the merits of that request. The current progression of the case
demonstrates that Prewitt has a sufficient grasp of the issues to communicate his
arguments to the Court such that appointment of counsel would not benefit the Court and
Prewitt.
Finally, Prewitt’s objections reveal that he has, in fact, been able to
communicate with the Court up to this point in a relatively effective manner, albeit with
the assistance of other inmates. That these inmates may not be able to assist Prewitt at
some point in the future is irrelevant to the Court’s consideration of appointment of
counsel, as the Court concludes that Prewitt’s habeas petition must be dismissed.
Accordingly, further filings in this case by Prewitt will be unnecessary, and the Court will
affirm the Magistrate Judge’s denial of Prewitt’s motion for appointment of counsel.4
II.
AMENDMENT AND SUPPLEMENTATION OF THE RECORD
Prewitt also objects to the Magistrate Judge’s February 19, 2014 order denying his
motions to amend the petition and motion to supplement his reply and the record. (See
4
In his most recent submission to the Court, Prewitt appears to argue that because he
chose to proceed pro se in his criminal trial, he “shouldn’t be allowed any attemp[t] to represent
himself in the instant action at this time.” (Aff. of Facts Regarding Pending Appeal at 2, July 11,
2014, Docket No. 38.) The Court concludes that Prewitt’s pro se status at the underlying trial
does not bear upon the propriety of appointing counsel for this proceeding and will address this
argument more fully in the context of Prewitt’s argument regarding the wavier of counsel in
connection with his objections to the R&R.
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Aff. of Facts, Mar. 31, 2014, Docket No. 35.)5 Prewitt’s objections to this order fall into
three main categories, and the Court will address each of them in turn under the
deferential standard of review for a Magistrate Judge’s ruling on a nondispositive pretrial
matter.
First, Prewitt appears to argue that the Magistrate Judge erred in construing his
submissions at Docket Numbers 30 and 31, respectively, as a motion to amend his
petition and a motion to supplement his reply and the record. (Id. at 1.) Prewitt explains
that these documents – at Docket Numbers 30 and 31 – were actually his amended
petition and supplementations of the record that he believes were granted in the
Magistrate Judge’s February 4, 2014 order. (Id.) But the Magistrate Judge’s February 4,
2014 order specifically ruled on the requests to amend and supplement that Prewitt had
formulated in his submissions found at Docket Numbers 27 and 28, and was not a blanket
authorization for Prewitt to file any supplemental materials and amendments that he
chose. In the February 4 order, the Magistrate Judge allowed Prewitt to supplement the
record with the portion of the transcript that he attached to his request at Docket Number
27. (See Order at 2-3, Feb. 4, 2014, Docket No. 29; see also Mot. to Amend at 1, Jan. 13,
2014, Docket No. 27 (requesting that the court “allow [Prewitt] to submit a supplemental
5
This appeal was untimely, as it was not filed until March 31, 2014. As explained above,
the Court has the discretion to consider untimely objections and will do so in this case. In
addition to raising objections to the February 19 order, the document filed at Docket Number 35
also contains arguments about Prewitt’s motion for appointment of counsel, (Aff. of Facts at 4,
Mar. 31, 2014, Docket No. 35), which arguments have been addressed earlier in this Order. The
document also contains arguments about Prewitt’s request for discovery and his claim for
prosecutorial misconduct (id. at 2-4), which arguments are discussed later in this Order in the
context of the R&R on Prewitt’s habeas petition.
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pleading” because he “fail[ed] to attach a[] part of the transcript that violated the hearsay
rule in his case,” and attaching the referenced transcript, “pray[ing] that the court review
the attached documentation included in this petition”).) Additionally, in the February 4
order the Magistrate Judge concluded that he would consider the additional arguments
provided by Prewitt in Docket Number 28 that related to his claim regarding waiver of
his right to counsel at trial. (Order at 3-4, Feb. 4, 2014, Docket No. 29.)
Contrary to Prewitt’s argument, the materials that he submitted at Docket
Numbers 30 and 31 were not encompassed as permissible amendments and supplements
as defined by the scope of the Magistrate Judge’s February 4 order. Instead, these
documents asserted a new claim for relief based on the unconstitutionality of the statute
under which Prewitt was convicted and sought to add additional arguments to various of
the other claims raised in his habeas petition. (See, e.g., Am. Pet., Feb. 11, 2014, Docket
No. 30; Aff. of Freddie James Prewitt-Bey, Feb. 14, 2014, Docket No. 31.) Because the
Magistrate Judge’s February 4 order did not provide Prewitt with permission to file the
documents that appear at Docket Numbers 30 and 31, it was not error for the Magistrate
Judge to construe these documents as new motions to amend or supplement, and deny
those motions in his February 19, 2014 order.
Second, Prewitt objects to the Magistrate Judge’s conclusion that amendment of
his petition to include a claim based on the unconstitutionality of the statute under which
he was convicted would have been futile. (Aff. of Facts at 7, Mar. 31, 2014, Docket
No. 35.) Specifically, Prewitt appears to argue that this claim was not procedurally
defaulted because it was raised in his supplemental brief before the Minnesota Court of
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Appeals. (Id. at 6-7.) The Court has, however, reviewed the pro se supplemental brief
that Prewitt submitted to the Minnesota Court of Appeals, and the brief does not contain
any reference to the unconstitutionality of the state statute under which Prewitt was
convicted. (See App. at 45-64, Nov. 20, 2013, Docket No. 14.) Therefore, it was not
error for the Magistrate Judge to conclude that Prewitt’s request to amend his petition to
include a claim based on the unconstitutionality of the statute would be futile because
Prewitt had not exhausted that claim in Minnesota state courts, and it accordingly could
not be heard by this Court. See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court. In other words, the state prisoner must give the state
courts an opportunity to act on his claims before he presents those claims to a federal
court in a habeas petition.”).
Finally, Prewitt objects to the Magistrate Judge’s February 19 order, arguing that
the Magistrate Judge “has abandoned his neutral role as Judge when he gave [P]rewitt
legal advice on applying for a writ of habeas corpus in state court for his unconstitutional
state statute claim” and that, by denying Prewitt’s claims for relief the Magistrate Judge
“is acting as an advocate on the state’s behalf rather than an impartial presider,” and
denying Prewitt his “substantial rights” to a “fair and impartial decision.” (Aff. of Facts
at 5, 7 Mar. 31, 2014, Docket No. 35.) First, the Court concludes that the Magistrate
Judge did not abandon his neutral role when he indicated that Prewitt could seek relief in
Minnesota state courts for his claim of conviction under an unconstitutional statute. It is
entirely appropriate for a court to opine on the procedural options available to a party.
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Furthermore, mentioning Prewitt’s other options for relief on this claim was not advice so
much as an essential part of the Magistrate Judge’s legal conclusion that Prewitt had not,
in fact, exhausted his available state remedies with respect to the claim. Second, the
Court finds that Prewitt’s general statements regarding unfairness based on the fact that
the Magistrate Judge ultimately concluded that Prewitt’s habeas petition should be
dismissed, does not identify any “personal bias or prejudice arising from an extrajudicial
source,” see Rossbach v. United States, 878 F.2d 1088, 1089 (8th Cir. 1989), and
therefore do not form the basis for any relief, see Wedington v. Holder, Civ. No. 12-2808,
2013 WL 25652, at *2 n.4 (D. Minn. Jan. 2, 2013) (finding claims that the Magistrate
Judge is “plainly . . . against petitioner getting justice and due process of the law” had “no
basis in law or fact, and therefore do not form the basis for any relief” (alteration in
original)); United States ex rel. Sammarco v. Ludeman, Civ. No. 09–880, 2010 WL
681454, *4 (D. Minn. Feb. 25, 2010) (dismissing unfounded criticisms of a magistrate
judge as not providing any basis for relief).
Accordingly, the Court will overrule
Prewitt’s objections and affirm the Magistrate Judge’s denial of Prewitt’s motions to
amend and supplement the record.
III.
HABEAS PETITION
A.
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
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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). Where a party fails to make proper,
specific objections, the Court reviews the R&R only for clear error. See Mashak v.
Minnesota, Civ. No. 11-473, 2012 WL 928251, at *2 (D. Minn. Mar. 19, 2012) (citing
Fed. R. Civ. P. 72 advisory committee’s note; Grinder v. Gammon, 73 F.3d 793, 795
(8th Cir. 1996)).
B.
Prewitt’s Objections
Prewitt has filed a number of documents containing objections to the Magistrate
Judge’s R&R recommending the dismissal of his habeas petition.6 In addition to a
number of substantive objections, which the Court will address below, Prewitt has again
asserted that he was “deprived of his constitutional right to an impartial Magistrate Judge
where the Magistrate Judge . . . has departed from his required neutral role and concurred
with the appeals court decision.” (Objection at 1, Feb. 28, 2013, Docket No. 34.) For the
reasons explained above, the Court will overrule this objection, as it fails to identify any
personal prejudice or bias arising from an extrajudicial source, and therefore fails to
provide a basis for any relief.
6
As with the other matters before the Court in this case, a number of the documents
purportedly containing objections are not timely, as they were filed more than fourteen days after
the Magistrate Judge issued the R&R on February 19, 2014. (See, e.g., Aff. of Facts, May 15,
2014, Docket No. 36; Am. Aff. of Facts, May 19, 2013, Docket No. 37); see also D. Minn. LR
72.2(b)(1) (“A party may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations within 14 days after being served with a copy of the
recommended disposition . . . .”). As with the other matters, however, the Court will consider
Prewitt’s objections, including the late-filed documents, holistically.
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1.
Discovery Request
Prewitt appears to object to the Magistrate Judge’s denial of his request for
discovery related to the hospital records of the victim’s examination “because the
examining nurse didn’t report [any] physical findings of a sexual assault or semen
identification.” (Id., Appendix at 1.)7 But Prewitt does not dispute that this discovery
request relates only to his claim based on insufficiency of the evidence. Nor has Prewitt
contested the Magistrate Judge’s conclusion that the federal nature of Prewitt’s
insufficiency of the evidence claim – raised in his multi-part fourth element for relief –
was “not fairly present[ed]” to the Minnesota Court of Appeals and therefore has not
been exhausted. (R&R at 17.) In other words, Prewitt has identified no portion of his
supplemental brief to the Minnesota Court of Appeals that alerted that court that his claim
based on insufficiency of the evidence was based upon a violation of his rights under the
Federal Constitution, and therefore Prewitt’s claim has not been exhausted. See Cox v.
Burger, 398 F.3d 1025, 1031 (8th Cir. 2005) (“A claim is procedurally defaulted if not
fairly presented in state court before raising it in federal court. To be fairly presented a
petitioner is required to 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.” (citation and internal quotation marks omitted)). Because
this Court could not consider Prewitt’s procedurally defaulted claim based on
7
Prewitt filed a number of appendices in connection with his objections. These
appendices appear at attachment 1 to his objections and will be referred to as “Appendix” with
the corresponding CMECF page number.
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insufficiency of the evidence – regardless of the merits of the claim – it was not error for
the Magistrate Judge to refuse to allow Prewitt discovery related to that claim.
2.
Waiver of Counsel
In his objection documents, Prewitt has reiterated his contention that the trial court
erred in allowing Prewitt to represent himself pro se without obtaining a knowing waiver
of his right to counsel. (See, e.g., Objection, Appendix at 2, Feb. 28, 2014, Docket
No. 34.)
But Prewitt has raised no specific objections to the Magistrate Judge’s
conclusion that the Minnesota Court of Appeals employed a reasonable interpretation of
federal law when it concluded that Prewitt’s waiver of counsel was not made in violation
of his constitutional rights. (R&R at 9.) Instead, Prewitt has merely summarized his
arguments that he included in numerous submissions to the Magistrate Judge. These
arguments are insufficient to invoke de novo review. See Moua v. Minnesota, Civ.
No. 13-1470, 2014 WL 1116882, at *3 (D. Minn. Mar. 20, 2014) (“Objections which are
not specific but merely summarize or repeat arguments presented to and considered by a
magistrate judge are not entitled to de novo review.” (internal quotation marks omitted)).
Even if the Court were to conduct a de novo review of Prewitt’s waiver of counsel
claim, it would conclude that he is entitled to no relief on this claim, because he has
failed to show that the Minnesota Court of Appeals’ adjudication of the claim “resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
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proceeding.” 28 U.S.C. § 2254(d). The court of appeals noted that “[w]aiver of the right
to counsel must be made knowingly, intelligently, and voluntarily.” Prewitt, 2013 WL
3491078 at *4 (citing State v. Rhoads, 813 N.W.2d 880, 884 (Minn. 2012)).
In
determining whether Prewitt’s express waiver of counsel – when he asserted his right to
represent himself pro se at trial – was valid, the court considered “‘the particular facts
and circumstances surrounding [the] case, including the background, experience, and
conduct of the accused.’” Id. (alteration in original) (quoting State v. Worthy, 583
N.W.2d 270, 275-76 (Minn. 1998)). Based on this standard the court of appeals had “no
difficulty concluding that the district court’s failure to secure a signed, written waiver or
to conduct an on-the-record inquiry does not require reversal here, because the
circumstances demonstrate a valid waiver.” Id. Specifically, the court of appeals found
that it was clear from the record that Prewitt understood the consequences of proceeding
pro se, explaining:
The district court specifically outlined the elements of the offenses that
Prewitt was charged with, and it twice told him the presumptive sentence.
It discussed Prewitt’s defense-strategy options, including the difficulties of
challenging DNA evidence and the elements of a consent defense. And it
repeatedly warned Prewitt about the dangers of proceeding pro se,
emphasizing that he would be held to the same standards as an attorney and
highlighting the difficulties of challenging certain evidence without expert
legal and scientific assistance. Prewitt steadfastly demanded his right to
defend himself in the face of the express and implied risks and
consequences of proceeding without representation. We hold that his
waiver of his right to counsel was valid.
Id. at *5.
Prewitt has not contested that the trial court provided him with the warnings
described by the court of appeals. Nor has Prewitt contested that he repeatedly and
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expressly professed his desire to proceed to trial pro se over the warnings of the trial
court. Instead, Prewitt’s objection appears to be based entirely on the trial court’s failure
to obtain a written waiver of the right to counsel. (Objection, Appendix at 2, Feb. 28,
2014, Docket No. 34.) But as explained by the court of appeals “the lack of a written
waiver does not in itself make a waiver-of-counsel invalid if there is a sufficient on-therecord oral waiver.” Prewitt, 2013 WL 3491078 at *4 (citing State v. Jones, 772 N.W.2d
496, 504-05 (Minn. 2009)).
This is consistent with the standard under the Federal
Constitution for a valid waiver of the right to counsel. See Faretta v. California, 422
U.S. 806, 835 (1975) (explaining that a waiver of counsel is valid if the defendant is
“made aware of the dangers and disadvantages of self-representation, so that the record
will establish that he knows what he is doing and his choice is made with eyes open”
(internal quotation marks omitted)). Accordingly, the Court concludes that the court of
appeals did not engage in an unreasonable application of federal law when it concluded
that Prewitt’s waiver of counsel was valid, and Prewitt’s habeas claim based on waiver of
counsel therefore does not entitle him to relief.
3.
Confrontation Clause
Prewitt also objects to the Magistrate Judge’s conclusion that the Minnesota Court
of Appeals could have reasonably concluded that out of court statements of the victim’s
friend admitted at his trial were non-testimonial and therefore did not violate the
Confrontation Clause. At issue in Prewitt’s Confrontation Clause claim is testimony
from the victim at trial that the victim’s friend told her that Prewitt tried to get into the
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bedroom where the victim was sleeping on the night of the rape. (App. at 57-58,
Nov. 20, 2013, Docket No. 14.) Because the victim’s friend was not called to testify,
Prewitt argues that his right under the Confrontation Clause to cross-examine her was
violated. The Magistrate Judge concluded that the Minnesota Court of Appeals could
have reasonably concluded that the statements of the victim’s friend were not testimonial
and therefore not protected by the Confrontation Clause “because the statements were
made by the victim’s friend to the victim on the morning after the alleged rape, before
any police investigation was started.” (R&R at 19-20). In his objections Prewitt argues
the Magistrate Judge erred in reaching this conclusion by relying on Crawford v.
Washington, 541 U.S. 36 (2004) instead of considering Davis v. Washington, 547 U.S.
813 (2006) and its companion case, Hammon v. Indiana, which were decided more
recently. (Am. Aff. of Facts at 2-3, May 19, 2013, Docket No. 37.)
First, as Prewitt appears to agree in his objections, Davis is not applicable to the
facts here. Davis involved the audio tape of a 911 call that was made to summon help in
an emergency situation. 547 U.S. at 817-19. The Court found the statements provided
during the course of the phone call were not testimonial, and therefore did not implicate
the Confrontation Clause, because the call was made for the purpose of “enabl[ing] police
assistance to meet an ongoing emergency” rather than to aid an investigation. Id. at 82728. Petitioner is correct that Hammon is more similar to his case than Davis because
Hammon involved the statement of a victim taken by the police after the incident, when
no ongoing emergency existed, which the Court determined to be testimonial. Id. at 81921. Petitioner attempts to draw similarities between his case and Hammon, explaining:
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Here the police officer interviewed the alleged victim and received from her
the information that she later repeated in court about what her friend . . .
had told her about petitioner. When her statement was made to the police
there was no emergency existing and her statement was made in
anticipation of a prosecution.
(Am. Aff. of Facts at 3-4, May 19, 2013, Docket No. 37.) But Prewitt’s reliance on
Hammon confuses the testimonial nature of the statement made by the victim to the
police and the statement made by the victim’s friend to the victim. In Hammon the police
officer interviewed the victim and the police officer testified at trial about what the victim
had told him. 547 U.S. at 819-21. The Court found the statements of the victim to be
testimonial as they were made for purposes of the investigation, and therefore it was a
violation of the Confrontation Clause for the victim not to testify and be subject to cross
examination. Id. at 829-30. In Prewitt’s case, the victim discussed the events informally
with the friend and the victim testified about what the friend had told her. The fact that
the victim was interviewed by a police officer in the time between her conversation with
her friend and her testimony at trial does not affect the analysis because Prewitt had the
opportunity to cross examine the victim. Therefore, the Magistrate Judge was correct
that the Court of Appeals could have concluded the statements of the friend were not
testimonial because they were not similar to any of the examples of testimonial
statements described in Crawford. (R&R at 19-20.) Because the statements were also
different than those at issue in Hammon, Petitioner’s citation of that case does not alter
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the Court’s analysis.8 Accordingly, the Court will adopt the R&R’s recommendation and
dismiss Prewitt’s petition for habeas relief.9
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Petitioner’s Objections [Docket Nos. 24, 28, and 38] are OVERRULED
and the Magistrate Judge’s October 21, 2013 Order denying appointment of counsel
[Docket No. 5] and December 6, 2013 Order denying a motion for reconsideration
[Docket No. 17] are AFFIRMED.
8
Prewitt further argues that even if the Minnesota Court of Appeals could reasonably
have concluded that the statements were not testimonial, those statements were still inadmissible
hearsay according to the Minnesota Rules of Evidence. (Am. Aff. of Facts at 4, May 19, 2013,
Docket No. 37.) This appears to be a new argument that was not presented to the Magistrate
Judge. Although Prewitt argued in both his Petition and his Reply that “inadmissible hearsay”
was admitted at his trial, he focused his discussion of the claim on the theory that the admitted
hearsay violated the Confrontation Clause, not the Minnesota Rules of Evidence. Indeed, Prewitt
concluded his argument by saying, “Petitioner deserves a proper review of this violation of his
federal constitutional rights and his petition for habeas review by this court should be granted on
these grounds alone.” (Pet’r’s Reply to Resp’ts Answer to Pet. at 4, Dec. 18, 2013, Docket
No. 19 (emphasis in original).) Because Prewitt did not present his argument that the Minnesota
Rules of Evidence were violated to the Magistrate Judge, it is improperly raised at this time. See
Ridenour v. Boehringer Ingelheim Pharm., Inc, 679 F.3d 1062, 1067 (8th Cir. 2012) (“[Plaintiff]
was required to present all of his arguments to the magistrate judge, lest they be waived.”).
Furthermore, even if Prewitt had raised this argument, he has failed to demonstrate how violation
of the Minnesota Rules of Evidence amounts to a violation of his federal Constitutional rights,
and could therefore entitle him to relief in this habeas proceeding.
9
Prewitt also objects to the Magistrate Judge’s failure to consider his argument about a
Brady violation involving photo lineups. This objection actually appears to relate to the
Magistrate Judge’s February 19 order which denied Prewitt’s request to supplement the record
with these arguments. In any case, even if the Magistrate Judge had considered this claim, it
would have entitled Prewitt to no relief as he did not raise this claim before the Minnesota state
courts.
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2.
Petitioner’s Objections [Docket No. 35] are OVERRULED and the
Magistrate Judge’s February 19, 2013 Order [Docket No. 32] is AFFIRMED.
IT IS FURTHER HEREBY ORDERED that Petitioner’s Objections [Docket
Nos. 34, 36, and 37] are OVERRULED and the Report and Recommendation dated
February 19, 2014 [Docket No. 33] is ADOPTED. Accordingly,
a.
Petitioner’s Petition for Writ of Habeas Corpus Relief [Docket
No. 1] is DISMISSED with prejudice.
b.
The Court does not certify for appeal under 28 U.S.C. § 2253(c)(1)
the issues raised in the petition.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: October 20, 2014
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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