Munt v. Grandlienard
Filing
31
ORDER ADOPTING IN PART, AND DECLINING TO ADOPT IN PART, REPORT AND RECOMMENDATION. 1. Petitioner's Objections [Doc. No. 28] to the Magistrate Judge's November 4, 2014, R & R are OVERRULED IN PART AND SUSTAINED IN PART; 2. The Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART the Magistrate Judge's R & R [Doc. No. 24]; 3. Petitioner's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody [Doc. No. 11] is DENIED; 4. Petitioner 039;s claims are DISMISSED WITH PREJUDICE; and 5. A Certificate of Appealability is GRANTED only as to Petitioner's Sixth Amendment claim for the right to an impartial jury to the extent that it relates to the state district court's failure to remove juror B.S. (Written Opinion) Signed by Judge Susan Richard Nelson on 1/12/2015. (LDB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Joel Marvin Munt,
Case No. 13-cv-3573 (SRN/SER)
Petitioner,
v.
MEMORANDUM OPINION
AND ORDER
Kent Grandlienard,
Respondent.
Joel Marvin Munt, MCF Oak Park Heights, 5329 Osgood Ave. N., Stillwater, MN 55082,
pro se.
Patrick Raymond McDermott and Susan B. DeVos, Blue Earth County Attorney’s Office,
P.O. Box 3129, Mankato, MN 56002-3129; and Matthew Frank and James B. Early,
Minnesota Attorney General’s Office, 445 Minnesota Street, Suite 1800, St. Paul, MN
55101-2134, on behalf of Respondent.
SUSAN RICHARD NELSON, United States District Judge
I.
INTRODUCTION
This matter is before the undersigned United States District Judge for consideration
of Petitioner Joel Marvin Munt’s Objections [Doc. No. 28] to United States Magistrate
Judge Steven E. Rau’s November 4, 2014, Report and Recommendation (“R & R”) [Doc.
No. 24]. The Magistrate Judge recommended that Petitioner’s Amended Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [Doc. No. 11] be
denied, the action be dismissed with prejudice, and a Certificate of Appealability not be
granted. For the reasons set forth below, the Court adopts nearly all of the Magistrate
Judge’s recommendations in the R & R, with the exception of his denial of a Certificate of
Appealability as to Petitioner’s Sixth Amendment claim for the right to an impartial jury, to
the extent that the claim relates to the state trial court’s failure to remove juror B.S.
Petitioner’s objections are, therefore, overruled except as to the limited issue of the
Certificate of Appealability as set forth below.
II.
BACKGROUND
The factual and procedural background of Petitioner’s case is well documented in the
Magistrate Judge’s R & R and is incorporated herein by reference.1 It was also summarized
succinctly by the Minnesota Supreme Court:
[Petitioner] was indicted by a Blue Earth County grand jury of four counts of
first-degree murder, one count of second-degree murder, two counts of firstdegree aggravated robbery, three counts of second-degree assault, three
counts of kidnapping, and three counts of criminal vehicular operation
causing injury, arising out of the shooting death of his ex-wife Svetlana and
the kidnapping of their three children. Because [Petitioner] pleaded not guilty
and not guilty by reason of mental illness, the district court bifurcated the
trial. The jury found [Petitioner] guilty of all counts and rejected his notguilty-by-reason-of-mental-illness defense. On direct appeal, [Petitioner]
argue[d] that the district court erred by: (1) declining to remove a prospective
juror for cause; (2) making allegedly improper comments to the jury;
(3) denying his request to testify on surrebuttal; (4) determining that his 9–
year–old daughter was incompetent to testify; and (5) failing to inquire into
the nature of his pretrial complaints about counsel appointed to represent him.
[Petitioner] also raise[d] various pro se claims. . . .
Minnesota v. Munt, 831 N.W.2d 569, 574 (Minn. 2013). The pro se claims included
prosecutorial misconduct, violation of the right to an impartial jury, and ineffective
assistance of counsel, among others. See id. at 587–88. The Minnesota Supreme Court
rejected Petitioner’s arguments and affirmed his conviction. See id. at 574.
1
The Court recites background facts only to the extent necessary to rule on
Petitioner’s objections.
2
On March 13, 2014, Petitioner filed his Amended Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody [Doc. No. 11]) (“Amended Habeas
Petition”), along with a supporting memorandum [Doc. No. 12], in this Court.2 The
Amended Habeas Petition includes four grounds for relief: (1) Petitioner’s right to trial by
an impartial jury was violated; (2) Petitioner was denied a fair trial because of prosecutorial
misconduct; (3) there was insufficient evidence to support Petitioner’s conviction for
premeditated murder; and (4) Petitioner received ineffective assistance of counsel during his
trial. (Am. Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody [Doc. No. 11] (“Am. Pet.”) at 8–11.) Respondent filed an Answer [Doc. No. 14], a
memorandum [Doc. No. 15], and an appendix [Doc. No. 16] on June 18, 2014, opposing the
Amended Habeas Petition. Petitioner’s reply [Doc. No. 20] was filed on July 14.
On November 4, the Magistrate Judge issued his R & R, recommending that
Petitioner’s Amended Habeas Petition be denied, the action be dismissed with prejudice,
and a Certificate of Appealability not be granted. (R & R [Doc. No. 24] at 19.) Petitioner’s
Objections were filed on November 20. He objects to the Magistrate Judge’s conclusion on
each ground for relief and requests a Certificate of Appealability. Respondent neither
objected to the R & R nor responded to Petitioner’s objections.
2
The Magistrate Judge ordered that Petitioner’s original Petition [Doc. No. 1] and
supporting memorandum [Doc. No. 2], which totaled 159 pages, be stricken from the
record as “unreasonably and unnecessarily burdensome.” (Order dated Feb. 11, 2014
[Doc. No. 8] at 2.) Petitioner was granted leave to file an amended petition and
memorandum. (See id. at 3–4.)
3
III.
DISCUSSION
The district court reviews de novo those portions of the R & R to which a specific
objection is made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); accord D.
Minn. LR 72.2(b). As for Petitioner’s underlying claims, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), describes the standard for granting
writs of habeas corpus made by persons in state custody:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision 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)(1)–(2).
In order to obtain habeas relief in federal court, “a state prisoner must show that
the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct.
770, 786–87 (2011). Under the “contrary to” clause of § 2254(d)(1), a federal court may
grant a habeas writ “if the state court arrives at a conclusion opposite to that reached by
[the U.S. Supreme] Court on a question of law or if the state court decides a case
4
differently than th[e] Court has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 413 (2000). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal court may grant a habeas writ “if the state court identifies the
correct governing legal principle from [the U.S. Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. Thus, “a
federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 411. Rather, the application must also be
“objectively unreasonable.” Id. at 409.
A.
Violation of Right to Trial by an Impartial Jury
Petitioner first objects to the Magistrate Judge’s determination that his biased jury
claim fails. (Petr’s Objs. at 2–3.) Through the Fourteenth and Sixth Amendments,
defendants in state criminal cases are guaranteed the right to trial by an impartial jury. See
Duncan v. Louisiana, 391 U.S. 145, 149 (1968); United States v. Johnson, 688 F.3d 494,
500 (8th Cir. 2012) (citing U.S. Const. amend. VI). “This ‘constitutional guarantee has not
been granted if any member of the jury was biased.’” Johnson, 688 F.3d at 500 (citation
omitted). However, “[t]o hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an impossible standard. It is sufficient
if the juror can lay aside his impression or opinion and render a verdict based on the
evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961) (citations omitted).
5
In his direct appeal, Petitioner challenged the trial court’s failure to remove jurors
B.S. and M.L., among others. (See Resp’ts App. [Doc. No. 16] § I (Appellant’s Br.) at
18–24; id. § K (Appellant’s Pro Se Supplemental Br.) at 33–42.) As for B.S., the
Minnesota Supreme Court concluded that her statement during voir dire—i.e., that “‘if
you confess then you are aware that you did [it], so basically mental illness or not you are
[aware] of what you did so you should be held responsible,’”—did not demonstrate actual
bias. Munt, 831 N.W.2d at 577. Specifically, the court found that B.S.’s statement did
not “demonstrate[] a strong and deep impression that closed her mind against
[Petitioner’s] mental illness defense” because there was no evidence that she knew the
legal meaning of “mental illness.” Id. at 578. In addition, the court determined that, in
light of her other voir dire responses in which she stated that she would be able to follow
the court’s instructions on the law and knew of no other reason why she could not be
impartial, B.S. “[did] not indicate an inability or unwillingness to set aside her personal
opinion and fairly evaluate [Petitioner’s] mental illness defense.” Id. at 579. As for the
other jurors challenged by Petitioner in his pro se brief, the Minnesota Supreme Court
determined that they had not admitted to actual bias or, alternatively, that they had been
rehabilitated. Id. at 588. As an example, the court pointed to juror M.L., who—although
admitting to selling lumber to a witness several years prior and stating that it would be
difficult to set aside her belief that Petitioner had shot his ex-wife—stated that “she could
be fair and impartial and base her decision on evidence admitted and the law as
instructed.” Id.
6
In his Amended Habeas Petition, Petitioner again argues that he was deprived of
an impartial jury, specifically referencing jurors B.S., A.M., L.S., R.S., and M.L. (Am.
Pet. at 8.) According to Petitioner, B.S. should have been struck because she stated that
she would hold a person responsible for a crime even if the person was mentally ill, A.M.
because she stated in her juror questionnaire that Petitioner was guilty, L.S. because he
provided inconsistent responses in voir dire and his juror questionnaire, R.S. because he
had connections to some of the individuals involved in the case, and M.L. because she
did business with one of the witnesses and said she believed that Petitioner shot his exwife. (See id.; Mem. in Supp. of Am. § 2254 Mot. [Doc. No. 12] at 2–4.) After
evaluating these allegations and the cases cited by Petitioner, the Magistrate Judge
determined that Petitioner failed to demonstrate that the Minnesota Supreme Court
reached a decision contrary to, or unreasonably applied, clearly established federal law as
determined by the U.S. Supreme Court. (See R & R at 7–11.)
Petitioner’s objections to these findings lack merit. (See Petr’s Objs. at 2–3.)
First, although Petitioner claims that the Magistrate Judge ignored the bulk of Petitioner’s
allegations as to each of these jurors, he fails to identify to which allegations he is
referring or how those allegations would render the outcome any different. Second,
contrary to Petitioner’s contention, the Magistrate Judge correctly determined that the
U.S. Supreme Court’s decision in Morgan v. Illinois, 504 U.S. 719 (1992), does not
establish that the failure to strike B.S. was reversible error. Rather, the Court in that case
dealt with voir dire issues specific to the sentencing phase for a capital offense and held
that a defendant may challenge for cause a prospective juror who maintains that he would
7
automatically vote to impose the death penalty in every case. Id. at 721, 729. Likewise,
the failure to remove juror B.S. is not contrary to Hughes v. United States, 258 F.3d 453
(6th Cir. 2001),3 because the juror found to be biased in that case had made an “express
admission of bias, with no subsequent assurance of impartiality.” Id. at 460 (emphasis
added). Third, although Petitioner claims that M.L.’s and L.S.’s “failure to honestly
answer [a] material question” constitutes grounds for a new trial, Petitioner fails to
explain why the Minnesota Supreme Court’s decision that those jurors did not express
actual bias was an unreasonable determination of the facts in light of the evidence
presented. Fourth, while Petitioner contends that R.S.’s “connections to [the] case” were
“inappropriate,” Petitioner points to no U.S. Supreme Court precedent to support his
argument. Fifth, Petitioner fails to explain his belief that review is necessary under
United States v. Rowe, 106 F.3d 1226 (5th Cir. 1997), a case in which the trial court
judge committed reversible error in not dismissing the jury panel after having intimidated
the jury pool and rendered it impossible to determine impartiality. Id. at 1229–30.
Finally, Petitioner does not explain why a failure to rehabilitate any of the jurors would
have been contrary to established U.S. Supreme Court precedent in light of the state
court’s finding that they had not expressed actual bias. Accordingly, habeas relief is not
warranted in this case on the grounds of juror bias.
3
Although many of the cases cited by Petitioner are Circuit Court opinions rather
than U.S. Supreme Court opinions, this Court will address his arguments.
8
B.
Prosecutorial Misconduct
Petitioner next objects to the Magistrate Judge’s determination that Petitioner is
not entitled to a writ of habeas corpus based on his prosecutorial misconduct claim. (See
Petr’s Objs. at 3–4.) Petitioner’s Amended Habeas Petition alleges several instances of
prosecutorial misconduct, all of which were originally raised in his pro se brief to the
Minnesota Supreme Court: the prosecutor’s claim that certain alleged child abuse occurred
months in the past was not supported by the evidence, the prosecutor claimed that a witness
had observed domestic violence even though the witness had no such first-hand knowledge,
the prosecutor solicited hearsay testimony that he knew was untrue, the prosecutor’s claim
that Petitioner and another individual were the only individuals to report child abuse was not
supported by the evidence, the prosecutor asserted his own opinions, the prosecutor tried to
mislead the jury by conflating two episodes of child abuse, the prosecutor advanced theories
unsupported by the record, the prosecutor made inflammatory statements about Petitioner’s
“selfishness” during his closing argument, the prosecutor tried to shift to Petitioner the
burden of explaining inconsistencies in the government’s case, and the prosecutor tried to
mislead the jury by presenting irrelevant facts about the truck’s black box. (See Am. Pet. at
9; Resp’ts App. § K (Appellant’s Pro Se Supplemental Br.) at 5–20.)
On direct appeal, the Minnesota Supreme Court summarized Petitioner’s allegations
as claims that the prosecutor referred to facts not in evidence and determined that, because
Petitioner’s counsel had not objected during trial, the claims must be reviewed for plain
error. Munt, 831 N.W.2d at 587. The court found that “none of [Petitioner’s] claims of
prosecutorial misconduct constitute error that warrant further review.” Id. As for the
9
closing argument, in particular, the court determined that the government may present “‘all
legitimate arguments on the evidence and all proper inferences that can be drawn from that
evidence,’” and that the allegedly improper remarks were “well-supported by inferences
drawn from [the] evidence.” Id. (quoting Minnesota v. Pearson, 775 N.W.2d 155, 163
(Minn. 2009)).
Federal habeas relief generally is not warranted on the grounds of prosecutorial
misconduct unless the misconduct injected enough unfairness into the trial to render the
conviction a denial of due process. Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th Cir.
2002) (citation omitted). To qualify, “improper remarks by a prosecutor must be ‘so
egregious that they fatally infect [] the proceedings and render[] [a defendant’s] entire
trial fundamentally unfair.’” Id. (citation omitted). The petitioner must demonstrate
“‘that absent the alleged impropriety the verdict probably would have been different.’”
Id. (citation omitted). As for statements made during a closing argument, habeas review
is “exceptionally limited,” and “relief should only be granted if the prosecutor’s closing
argument was so inflammatory and so outrageous that any reasonable trial judge would
have sua sponte declared a mistrial.” James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999).
Applying these standards, the Magistrate Judge determined that in cases involving
alleged prosecutorial misconduct more egregious than this, courts have not found a denial of
due process, and so the Minnesota Supreme Court’s rejection of Petitioner’s claim was not
contrary to, and did not involve an unreasonable application of, clearly established
federal law as determined by the U.S. Supreme Court. (R & R at 12.) The Magistrate
10
Judge also found that Petitioner failed to demonstrate that unconstitutional prosecutorial
misconduct was the reason for his conviction or that the Minnesota Supreme Court’s
decision was contrary to U.S. Supreme Court law or based on an unreasonable
determination of the facts. (Id. at 13.)
Despite Petitioner’s objections to the contrary, (see Petr’s Objs. at 3–4), the
Magistrate Judge correctly determined that Petitioner is not entitled to relief on this claim.
First, Petitioner’s general objections that the Magistrate Judge and Minnesota Supreme
Court “ignored bulk of substance of allegations” are so lacking in specificity as to prevent
this Court from conducting a review. See D. Minn. LR 72.2(b)(1) (requiring that objections
be “specific”). Second, although Petitioner again challenges the prosecutor’s references to
Petitioner’s “selfishness,” as the Magistrate Judge concluded, such a statement does not rise
to the level of prosecutorial misconduct constituting reversible error under U.S. Supreme
Court precedent. See, e.g., Darden v. Wainright, 477 U.S. 168, 180–81 (1986) (finding that
the prosecutor’s reference to the defendant as an “animal” during closing argument did not
violate the defendant’s due process rights); Kellogg v. Skon, 176 F.3d 447, 451–52 (8th Cir.
1999) (finding that the prosecutor’s references to the defendant as a “monster,” “sexual
deviant,” and “liar” did not render the trial fundamentally unfair). Third, the cases cited by
Petitioner—to the extent that they are relevant4—do not demonstrate that the Minnesota
4
Petitioner cites to two cases that are not at all relevant to the present matter. First,
Petitioner cites to United States v. Tory, 52 F.3d 207 (9th Cir. 1994), “regarding
cumulative effect.” (Petr’s Objs. at 4.) Petitioner appears to be asserting a new argument
that the cumulative effect of the alleged prosecutorial misconduct warrants reversal in
this case. However, Tory does not discuss prosecutorial misconduct, Ninth Circuit law is
not applicable in this case, and Tory cites to no U.S. Supreme Court law regarding
11
Supreme Court’s rejection of his claims was unreasonable in light of the evidence presented,
or was contrary to U.S. Supreme Court precedent. See United States v. Childress, 58 F.3d
693, 715–19 (D.C. Cir. 1995) (reviewing allegations that the prosecutor made statements
unsupported by the evidence and inflammatory statements, and finding no reversible error);
United States v. Tajeddini, 996 F.2d 1278, 1282–86 (1st Cir. 1993) (reviewing the
prosecutor’s alleged reliance on matters not in evidence, statements of personal opinion, and
inflammatory remarks under a plain error standard and finding no error); United States v.
Hurst, 951 F.2d 1490, 1502 (6th Cir. 1991) (finding allegations that the prosecutor made
statements of personal opinion to be without merit). Finally, Petitioner has not cited to any
evidence in the record that contradicts the Minnesota Supreme Court’s conclusion that
the prosecutor’s allegedly improper statements were supported by inferences drawn from
the evidence. Therefore, habeas relief is not warranted in this case on the grounds of
prosecutorial misconduct.
C.
Insufficient Evidence
Petitioner also objects to the Magistrate Judge’s denial of Petitioner’s claim that
there was insufficient evidence to support his conviction. (Petr’s Objs. at 7.) The
cumulative effect. More importantly, Petitioner does not attempt to explain how—in
light of his inability to demonstrate that any of the individual allegations of misconduct
were improper—the alleged conduct as a whole was improper.
Second, Petitioner cites to Johnson v. United States, 520 U.S. 461 (1997), for the
proposition that “the prosecutorial misconduct was plain error.” (Petr’s Objs. at 4.)
However, Johnson is inapposite because it deals only with the proper application of Federal
Rule of Criminal Procedure 52(b)’s plain error test in the context of a trial court’s failure to
submit to the jury the issue of materiality in a perjury prosecution. See Johnson, 520 U.S. at
463–70.
12
Magistrate Judge found that Petitioner’s claim was procedurally defaulted because
Petitioner did not raise the issue on direct appeal to the Minnesota Supreme Court, as
required by Minnesota state law. (R & R at 17.) Therefore, the Magistrate Judge
determined, this Court could only review the merits of the claim if Petitioner
demonstrated either cause for the default and actual prejudice, or a fundamental
miscarriage of justice, neither of which is applicable in this case. (Id. at 17–18.)
In response, Petitioner argues that: (1) neither the Magistrate Judge nor the
Minnesota Supreme Court construed his pleadings liberally, as is required for a pro se
petitioner; (2) neither state procedure nor federal law can infringe on his constitutional
rights, and the AEDPA and word limits are unconstitutional because they impede his
right to redress; (3) his claims have merit, but he was impeded from presenting them
because he lacks legal knowledge and had limited time and access to the library; and
(4) any violation of a constitutional right is a miscarriage of justice. (See Petr’s Objs. at
7, 9–16.)
As the Magistrate Judge correctly noted, “a federal court may usually only
consider ‘those claims which the petitioner has presented to the state court in accordance
with state procedural rules.” McCall v. Benson, 114 F.3d 754, 756–57 (8th Cir. 1997)
(citation omitted). Thus, according to the Eighth Circuit:
before [the federal court] may reach the merits of a habeas petition, [the
federal court] must first determine whether the petitioner has fairly
presented his federal constitutional claims to the state court. When the
petitioner has failed to do so, [the federal court] must then determine
whether the petitioner has complied with state procedural rules governing
post-conviction proceedings, i.e., whether a state court would accord the
petitioner a hearing on the merits. If state procedural rules prevent the
13
petitioner from obtaining such a hearing, then the petitioner is also
procedurally barred from obtaining habeas relief in a federal court unless he
can demonstrate either cause and actual prejudice, or that a miscarriage of
justice will occur if [the court] do[es] not review the merits of the petition.
Id. at 757 (internal citations omitted). “To meet [the miscarriage of justice] exception, ‘a
habeas petitioner [must] present new evidence that affirmatively demonstrates that he is
innocent of the crime for which he was convicted.’” Oglesby v. Bowersox, 592 F.3d 922,
926 (8th Cir. 2010) (citation omitted).
Petitioner’s objections fail to demonstrate that he fairly presented his insufficiency
of the evidence claim to the state court, that he had cause for his failure to do so,5 or that
a miscarriage of justice will result if this Court does not review the merits of that claim.
First, although Petitioner generally claims that his pleadings were not liberally construed
by the Minnesota Supreme Court or the Magistrate Judge, Petitioner fails to point to any
portion of his pleadings that he contends should have been—but was not—liberally
construed to include his insufficiency of the evidence claim. And, having inexplicably
failed to raise the claim on direct appeal, Petitioner would not now be entitled to a
hearing on that claim. See Minnesota v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976)
(stating that, “where direct appeal has once been taken, all matters raised therein, and all
claims known but not raised, will not be considered upon a subsequent petition for
postconviction relief”). Second, Petitioner alleges no manner in which state procedural
rules or word limits prevented him from presenting that claim on direct appeal, and the
5
Because Petitioner fails to demonstrate cause for the default, the Court need not
reach the issue of prejudice. See Oglesby, 592 F.3d at 926 (declining to address the
question of prejudice where the petitioner failed to establish cause for his default).
14
AEDPA’s requirement that Petitioner first seek recourse for his federal claims in state
court is not unconstitutional. See, e.g., Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012)
(applying the doctrine of procedural default); McIntyre v. Mahoney, No. CV 06-83-GFSEH, 2008 WL 1743446, at *5 (D. Mont. Apr. 14, 2008) (rejecting the petitioner’s
argument that “the doctrine of procedural default amounts to an unconstitutional
suspension of the writ”); Potvin v. Powers, No. CV 13-7165-DOC (PJW), 2014 WL
6841748, at *2 (C.D. Cal. Dec. 2, 2014) (rejecting the § 2254 petitioner’s argument that
the AEDPA’s exhaustion requirement is unconstitutional and stating that “the Supreme
Court has consistently upheld the exhaustion doctrine”). Third, lack of legal training is
insufficient to establish cause for failure to raise claims on direct appeal. See, e.g.,
Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir. 1988) (finding that a petitioner’s “pro se
status and educational background are not sufficient cause for failing to pursue state-court
remedies”). Likewise, where a prisoner is represented by counsel—as Petitioner was on
direct appeal—he has an adequate opportunity to present his claims to the courts, and any
alleged limitations on access to the prison library do not deprive him of access to the
courts. See Entzi v. Redmann, 485 F.3d 998, 1005 (8th Cir. 2007) (citing Bounds v.
Smith, 430 U.S. 817, 825 (1977)). Finally, the miscarriage of justice exception only
applies when a petitioner presents new evidence that demonstrates his innocence of the
underlying crime, which Petitioner has failed to do. Accordingly, Petitioner may not
obtain habeas relief in this Court relating to his insufficiency of the evidence claim.
15
D.
Ineffective Assistance of Counsel
Finally, Petitioner objects to the Magistrate Judge’s determination that his
ineffective assistance of counsel claim fails. (See Petr’s Objs. at 5–6.) In his appeal of
his conviction to the Minnesota Supreme Court, Petitioner argued through appellate
counsel that the trial court should have made an inquiry into the nature of Petitioner’s
complaint at a pre-trial hearing that his attorneys were not “‘pursuing [his] objectives.’”
(Resp’ts App. [Doc. No. 16] § I (Appellant’s Br.) at 37.) In his pro se brief, Petitioner
asserted that his trial counsel failed to, among other things, discredit or impeach certain
witnesses, obtain certain evidence, obtain expert witnesses, and make certain objections.
(See id. § K (Appellant’s Pro Se Supplemental Br.) at 46–63.) Petitioner also asserted
that his trial counsel had conflicts of interest because they put their professional
relationships ahead of Petitioner’s interests. (See id. at 51, 64–65.) As for the argument
raised by Petitioner through his appellate counsel, the Minnesota Supreme Court
determined that Petitioner “failed to establish exceptional circumstances that would
warrant a further inquiry into his complaints.” Munt, 831 N.W.2d at 587. And, the court
declined to consider the arguments Petitioner raised in his pro se brief because he failed
to cite evidence in the record or legal authority to support his claim. Id. at 588.
Petitioner raised the arguments again in his Amended Habeas Petition. (See Am.
Pet. at 10.) The Magistrate Judge, applying the AEDPA standard, found that Petitioner
failed to establish that the state court’s determination that he was not entitled to further
inquiry regarding the effectiveness of his appointed trial counsel was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by
16
the U.S. Supreme Court. (R & R at 14.) The Magistrate Judge also determined that
Petitioner had procedurally defaulted on his pro se ineffective assistance of counsel claim
because it was waived on appeal due to his failure to comply with Minnesota law. (Id. at
15–16.) As to the pro se claim, the Magistrate Judge also found that there was no
demonstrated cause for the default and resulting prejudice, or a demonstration that failure
to consider the claims would result in a fundamental miscarriage of justice. (Id. at 16
n.5.)
In his objections, Petitioner argues that the Magistrate Judge and state court
ignored the bulk of his allegations of ineffective assistance and “were clearly in error and
contrary to the Constitution and precedents.” (Petr’s Objs. at 5.) Petitioner asserts that
his pro se brief to the Minnesota Supreme Court detailed the wrongs at issue, with
citations to precedent. (See id. at 5–6.) Finally, Petitioner argues that state law cannot
deprive him of his constitutional rights, that the Magistrate Judge failed to liberally
construe his pleadings, and that he faced many obstacles in terms of the availability of
library resources in the preparation of his pleadings. (See id.)
The Magistrate Judge properly determined that Petitioner’s ineffective assistance
of counsel claims lack merit. First, Petitioner fails to demonstrate that the Minnesota
Supreme Court’s decision as to his limited complaint that his attorneys were not
“pursuing his objectives” was contrary to, or involved an unreasonable application of,
U.S. Supreme Court precedent, or was based on an unreasonable determination of the
facts. The only cases cited by Petitioner in his objections related to this claim are
Jamison v. Lockhart, 975 F.2d 1377 (8th Cir. 1992), and Wood v. Georgia, 450 U.S. 261
17
(1981), and neither of those cases mandates a different result. In Jamison, the petitioner
argued that his procedural default on his ineffective assistance of counsel claim was
caused by his trial counsel’s conflict of interest. 975 F.2d at 1379. The court determined
that the existence of an actual conflict of interest could constitute cause to excuse a
procedural default and remanded the case to the district court to explore whether such a
conflict existed where the petitioner’s trial counsel and two of the prosecution’s witnesses
allegedly all worked for the same employer. Id. at 1379–81. And, in Wood, the U.S.
Supreme Court found that the record demonstrated the possibility of a conflict of interest
where the defendants’ counsel was hired and paid for by the defendants’ employer, and
the defendants were facing prison time due to the employer’s actions. 450 U.S. at 267–
71. The facts in these cases are materially distinguishable from the facts in the present
case.
Second, Petitioner fails to demonstrate that his pro se claim is not procedurally
defaulted. As the Magistrate Judge properly noted, “[w]here a state court relies on a
procedural rule to decline to consider the merits of a claim on appeal, and that rule is
firmly established and regularly followed, such claims are procedurally defaulted for
purposes of federal habeas review.” (R & R at 15 (citing Barnett v. Roper, 541 F.3d 804,
808–10 (8th Cir. 2008)).) Here, the Minnesota Supreme Court relied on Minnesota v.
Sontoya, 788 N.W.2d 868, 876 (Minn. 2010), and Minnesota v. Bartylla, 755 N.W.2d 8,
22 (Minn. 2008), in declining to consider Petitioner’s claim based on his failure to cite
evidence in the record or legal authority supporting his claim. Munt, 831 N.W.2d at 588.
As those cases, and others, demonstrate, the rule that pro se claims are waived on appeal
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if not supported by citations to the record or legal authority is firmly established and
regularly followed in Minnesota. See also Minnesota v. Krosch, 642 N.W.2d 713, 719
(Minn. 2002) (“The brief contains no argument or citation to legal authority in support of
the allegations and we therefore deem them waived.”).
Although Petitioner claims that he did cite to legal authority in his pro se brief to
the Minnesota Supreme Court, (Petr’s Objs. at 6), this Court will not second-guess the
Minnesota Supreme Court’s application of its own procedural rules. See Clemons v.
Luebbers, 381 F.3d 744, 751 (8th Cir. 2004) (“[F]ederal courts do not look at whether
state courts have correctly applied their own procedural rules.”). Rather, if such rules
were applied to bar the claim—which was the case here—a petitioner must show cause
and prejudice, or actual innocence, as discussed above. Id. Petitioner fails to satisfy
either test: Petitioner had the ability to—but did not—fully set forth his claim on direct
appeal, and, because he was represented by counsel, the existence of any alleged
limitations of the prison library do not constitute cause for failing to do so, see Entzi, 485
F.3d at 1005 (citing Bounds, 430 U.S. at 825); and Petitioner has not presented new
evidence that demonstrates his innocence of the underlying crime, see Oglesby, 592 F.3d
at 926. Accordingly, Petitioner is not entitled to habeas relief in this Court relating to his
ineffective assistance of counsel claim.
E.
Certificate of Appealability
Finally, Petitioner objects to the Magistrate Judge’s denial of his request for a
Certificate of Appealability (“COA”). (See Petr’s Objs. at 7–8.) A state prisoner may not
appeal the denial of a 28 U.S.C. § 2254 habeas petition unless he is granted a COA. 28
19
U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). To obtain a COA, a petitioner must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A COA
will not necessarily be granted simply because an appeal is pursued in good faith and raises
a non-frivolous issue. Flieger v. Delo, 16 F.3d 878, 882 (8th Cir. 1994). Instead, the
prisoner must satisfy a higher standard; he must show that the issues to be raised on appeal
are “debatable among reasonable jurists,” that different courts “could resolve the issues
differently,” or that the issues otherwise “deserve further proceedings.” Id. (citing Lozada v.
Deeds, 498 U.S. 430, 432 (1991)).
The Magistrate Judge correctly determined that Petitioner failed to make a
substantial showing of the denial of a constitutional right regarding his claims for violation
of the right to a fair trial by an impartial jury insofar as it relates to the failure to remove
jurors M.L., A.M., L.S., and R.S.; prosecutorial misconduct; insufficiency of the evidence;
and ineffective assistance of counsel. It is unlikely that another court, including the Eighth
Circuit Court of Appeals, would decide those claims any differently than they have been
decided here. Therefore, appellate review is not warranted, and the Magistrate Judge
properly denied Petitioner’s request for a COA as to those claims. However, this Court will
grant Petitioner a COA on his claim for violation of the right to a fair trial by an impartial
jury insofar as it relates to the failure to remove juror B.S. Three Justices of the Minnesota
Supreme Court dissented from the majority’s conclusion that the trial court did not abuse its
discretion in declining to remove B.S. for cause on the grounds that B.S. demonstrated
actual bias during voir dire and was not properly rehabilitated. See Munt, 831 N.W.2d at
20
588 (Wright, J., dissenting); id. at 594 (Page, J. and Anderson, J. joining in Wright, J.’s
dissent). This is evidence that the issue could be “debatable among reasonable jurists.”
THEREFORE, IT IS HEREBY ORDERED THAT:
1.
Petitioner’s Objections [Doc. No. 28] to the Magistrate Judge’s November 4,
2014, R & R [Doc. No. 24] are OVERRULED IN PART AND
SUSTAINED IN PART;
2.
The Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART
the Magistrate Judge’s R & R [Doc. No. 24];
3.
Petitioner’s Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus by a Person in State Custody [Doc. No. 11] is DENIED;
4.
Petitioner’s claims are DISMISSED WITH PREJUDICE; and
5.
A Certificate of Appealability is GRANTED only as to Petitioner’s Sixth
Amendment claim for the right to an impartial jury to the extent that it relates
to the state district court’s failure to remove juror B.S.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 12, 2015
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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