Milner v. Smith
Filing
13
ORDER adopting Report and Recommendation 8 denying 9 Motion to Appoint Counsel and 2 Application to Proceed in District Court without Prepaying Fees or Costs. See Order for details.(Written Opinion). Signed by Judge Patrick J. Schiltz on February 9, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
EDWARD LEROY MILNER,
Case No. 14‐CV‐4461 (PJS/HB)
Petitioner,
v.
ORDER
MICHELLE SMITH,
Respondent.
Edward Leroy Milner, pro se.
Petitioner Edward Milner has filed a ten‐claim application for a writ of habeas
corpus under 28 U.S.C. § 2254, collaterally attacking his state‐court convictions for
contempt of court and for violating a domestic‐abuse no‐contact order.1 ECF No. 1. The
Minnesota Court of Appeals affirmed Milner’s convictions. State v. Milner,
No. A12‐2137, 2013 WL 6152174 (Minn. Ct. App. Nov. 25, 2013).2
Magistrate Judge Hildy Bowbeer reviewed Milner’s habeas application and
noted that Milner had apparently failed to exhaust his state‐court remedies by
1
Milner previously filed another habeas application challenging a separate
judgment for first‐degree burglary and felony domestic assault. The Court dismissed
that application without prejudice for failure to exhaust state‐court remedies. Milner v.
Smith, No. 14‐CV‐4243 (PJS/HB) (D. Minn. Jan. 5, 2015).
2
A search of the publicly available records on the Minnesota Supreme Court’s
website suggests that Milner filed a petition for review, but the petition was dismissed
because Milner failed to serve it on the government.
presenting all ten of his claims to the state courts through one complete round of
appellate review—a requirement of habeas relief. See § 2254(b); O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). Judge Bowbeer ordered Milner to provide an affidavit “that
provides a comprehensive explanation of how the exhaustion requirement has been
satisfied” for each of his claims. ECF No. 5 at 3. Judge Bowbeer also ordered Milner to
provide copies of his state appellate briefs, “if available.” Id. Judge Bowbeer warned
Milner that if he did not provide the required documentation his application might be
dismissed without prejudice. Id.
Milner responded with an affidavit that argued the merits of some of his habeas
claims and alleged that Judge Bowbeer should be disqualified because she had
“prejudice or personal bias” against him. ECF No. 6. Milner cited as evidence of
Judge Bowbeer’s “bias” the fact that she had ordered him to explain how he had
exhausted his state‐court remedies, and Milner complained that Judge Bowbeer was “a
woman of . . . unknown thoughts, opinions, and assumptions” about domestic violence.
Id. at 2, 20. Milner attached transcripts from his Minnesota trial‐court proceedings, but
he did not submit copies of anything that he had filed with either the Minnesota Court
of Appeals or the Minnesota Supreme Court.
Judge Bowbeer denied Milner’s request that she recuse herself and issued a
Report and Recommendation (“R&R”) recommending that Milner’s application be
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dismissed without prejudice because he had not established that he had exhausted his
state‐court remedies. ECF Nos. 7‐8. Judge Bowbeer noted that, in affirming Milner’s
convictions, the Minnesota Court of Appeals did not even mention two of the federal
claims Milner is now pursuing (the prosecutor’s purported violation of Brady v.
Maryland, 373 U.S. 83 (1963), and his lawyer’s alleged ineffective assistance). ECF No. 8
at 1‐2. This silence, Judge Bowbeer reasoned, “strongly suggests that Milner did not
raise these issues.” Id. Judge Bowbeer recognized that Milner may have properly
exhausted some of his claims, but concluded that his apparently “mixed petition”
(containing both exhausted and unexhausted claims) should be dismissed without
prejudice, so that Milner could either return to state court to exhaust all of his claims or
file an amended habeas petition containing only exhausted claims. Id. at 3‐4.
Judge Bowbeer further recommended that no certificate of appealability be issued. Id.
at 4‐5.
This matter is before the Court on Milner’s objection to the R&R. ECF No. 11.3
Also pending is Milner’s motion for appointment of counsel. ECF No. 9. The Court has
conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on
that review, the Court agrees with Judge Bowbeer’s analysis and adopts her R&R. Only
a few matters merit comment.
3
The R&R was signed on December 17, 2014, and entered on the docket the
following day.
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First, Milner insists that, although the decision of the Minnesota Court of
Appeals said nothing about two of the claims in his current federal petition, he did raise
those issues before that court. Yet Milner still provides nothing to show that he indeed
pursued all of his federal claims in both state appellate courts—i.e., in both the
Minnesota Court of Appeals and the Minnesota Supreme Court. As a habeas petitioner,
Milner bears the burden of showing that he exhausted his state‐court remedies. Darr v.
Burford, 339 U.S. 200, 218‐19 (1950), overruled on other grounds by Fay v. Noia, 372 U.S. 391
(1963); Fenner v. Taylor, 99 F. App’x 82, 83 (8th Cir. 2004) (unpublished); Carmichael v.
White, 163 F.3d 1044, 1045 (8th Cir. 1998). Milner has not met that burden.
Second, Milner contends that his habeas petition should not be dismissed even if
two of his claims were not exhausted because his petition includes eight other claims
that were exhausted. But dismissal without prejudice is precisely what the Supreme
Court has instructed be done with “mixed petitions” containing exhausted and
unexhausted claims. See Burton v. Stewart, 549 U.S. 147, 154 (2007); Rose v. Lundy, 455
U.S. 509, 518‐22 (1982). Although Milner does not request a stay, the Court agrees with
Judge Bowbeer that Milner is not entitled to a stay of his federal proceeding while he
returns to state court to attempt to exhaust his claims. Milner has not shown—as he
must to be entitled to a stay—that there was “good cause” for his apparent failure to
exhaust. Rhines v. Weber, 544 U.S. 269, 277 (2005).
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Third, Milner maintains that Judge Bowbeer should not have asked him to
provide copies of his state appellate briefs because he is indigent. He points to 28 U.S.C.
§ 2254(f), which authorizes federal courts to order state officials to produce portions of
the record relevant to sufficiency‐of‐the‐evidence challenges if the petitioners are
indigent or otherwise unable to produce the record themselves. But this provision does
not apply, as Milner’s habeas application does not challenge the sufficiency of the
evidence supporting his convictions. Moreover, Milner’s failure to provide the briefs
was not determinative. Judge Bowbeer told Milner to produce those briefs only “if
available.” The briefs were just one way for Milner to establish that he had presented
his claims to the Minnesota courts. Milner also might have explained in his affidavit
how the claims were presented to the trial court, and then to the Court of Appeals, and
then to the Supreme Court. But, as Judge Bowbeer observed, Milner did not even
discuss his Brady or ineffective‐assistance claims.
Fourth, Milner makes the bald assertion that circumstances exist that render the
Minnesota courts’ corrective processes ineffective to protect his rights—an exception to
the exhaustion requirement under § 2254(b)(1)(B)(ii). But Milner does not identify these
“circumstances” or otherwise substantiate his assertion.
Finally, to the extent that Milner challenges Judge Bowbeer’s denial of his request
that she recuse herself, that request was and remains specious. Milner’s objection
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appears to boil down to disagreements with Judge Bowbeer’s decisions regarding his
habeas application. But, “[a]lmost invariably, [judicial rulings] are proper grounds for
appeal, not for recusal.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also United
States v. Melton, 738 F.3d 903, 906 (8th Cir. 2013). Milner has identified no statements of
Judge Bowbeer’s that even remotely “display a deep‐seated favoritism or antagonism
that would make fair judgment impossible.” Liteky, 510 U.S. at 555.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES the objection of petitioner Edward Leroy Milner [ECF No. 11]
and ADOPTS the Report and Recommendation entered on December 18, 2014 [ECF
No. 8]. IT IS HEREBY ORDERED THAT:
1.
Milner’s application under 28 U.S.C. § 2254 [ECF No. 1] is DENIED
WITHOUT PREJUDICE.
2.
Milner’s motion to proceed in forma pauperis [ECF No. 2] is DENIED as
moot.
3.
Milner’s motion for appointment of counsel [ECF No. 9] is DENIED as
moot.
4.
No certificate of appealability will issue.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 9, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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