Fenstermaker v. Roy
ORDER adopting 11 Report and Recommendation. This action is Dismissed with prejudice. Petitioner is Granted a Certificate of Appealability. (Written Opinion) Signed by Judge Susan Richard Nelson on 08/22/2017. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Russell J. Fenstermaker,
Case No. 16-cv-363 (SRN/BRT)
Kathy Halvorson, Warden, MCF-Faribault,
Roy G. Spurbeck, Minnesota State Public Defender, 540 Fairview Avenue North, Suite
300, St. Paul, Minnesota 55104, for Petitioner.
James B. Early, Matthew Frank, Minnesota Attorney General’s Office, 445 Minnesota
Street, Suite 1800, St. Paul, Minnesota 55101, and James P. Spencer, Olmstead County
Attorney, 151 Fourth Street Southeast, Rochester, Minnesota 55904, for Respondent.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the undersigned United States District Judge for
consideration of Petitioner Russell Fenstermaker’s Objections [Doc. No. 13] to United
States Magistrate Judge Becky R. Thorson’s Report and Recommendation (“R&R”),
dated March 17, 2017 [Doc. No. 11].
The magistrate judge recommended that
Fenstermaker’s 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus by a Person in State
Custody [Doc. No. 1] (“Habeas Pet.”) be denied, and the action be dismissed.
Pursuant to statute, this Court reviews de novo any portion of the magistrate
judge’s opinion to which specific objections are made, and “may accept, reject, or
modify, in whole or in part, the findings or recommendations” contained in that opinion.
28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). Based
on that de novo review, and for the reasons set forth herein, the Court overrules
Petitioner’s objections and adopts the R&R in its entirety.
The facts relevant to this matter have been thoroughly set forth in the magistrate
judge’s R&R, and are not challenged by either party. (See R&R at 2-6.) Accordingly,
the Court will incorporate the background section of the R&R by reference here, and
briefly set forth only those facts necessary to provide context for its discussion of
Fenstermaker’s objections. 1
In early 2012, the State of Minnesota brought criminal charges against
Fenstermaker for first-degree and third-degree criminal sexual assault stemming from an
alleged sexual relationship Fenstermaker entered into with his step-daughter. (See R&R
at 2-3.) Trial commenced on November 14, 2012, and after a full day of voir dire, a jury
of twelve and two alternates were selected and sworn. (See R&R at 3.) Opening
arguments were scheduled to begin on November 16, 2012, but those plans were derailed
when the assigned prosecutor was suddenly incapacitated with a back injury. (See id.)
The judge accordingly ordered trial continued until the following Monday—November
The Court will further provide citation only to the R&R, rather than the underlying
However, when court resumed, the assigned prosecutor’s condition had still not
improved sufficiently to allow her to conduct trial. (See id.) As the State informed the
court, the prosecutor’s pain level was such that she would not be able to concentrate on
the proceedings, and the pain medication she was on had a tendency to impair her mental
faculties. (See id. at 3-4.) According to the State, no substitute prosecutor had time to
adequately prepare to take over the trial, and, equally importantly, doing so would mean
that the State would lose the benefit of the rapport that the prosecutor had developed with
witnesses and the jurors. (See id. at 4.) Although the State suggested that there was
“manifest necessity” warranting a mistrial, it suggested alternatively continuing the trial
until the following week. (See id.) Defense counsel did not object to a continuance, but
did object to a declaration of a mistrial. (See id.)
The district court ultimately decided to declare a mistrial, stating as follows:
First of all, this jury’s time of service ends this week, which is
Wednesday of this week because of the Thanksgiving holiday. We did
look at my calendar for next week, and I have matters that need to be
attended to next week that are not jury trial related, so it creates some
scheduling difficulties. I’m reasonably certain those could be overcome,
but it strikes me that a mistrial should be granted, and I guess I would take
[the state’s] comments as a motion to declare a mistrial. The court was
prepared in the absence of such a motion to declare a mistrial sua sponte for
a couple of reasons: Number one, those enumerated by the state I think are
valid. [The assigned prosecutor] is an experienced trial lawyer. She
handles these types of cases. She has established rapport with the alleged
victim and the alleged victim’s family and also established rapport with the
14 jurors who have been sworn, and I think given the nature of this
particular case, and the seriousness of it, that to require the state to have
somebody simply jump in at this stage and try the case would not be fair to
the State of Minnesota. I would take the same position if something had
happened to [defense counsel]. I don’t think that either one of those
circumstances would be fair, given the nature of these alleged offenses and
also the significant punishment that’s attendant to any conviction.
I think the high degree standard relative to the manifest necessity is
satisfied in this case because [the assigned prosecutor’s] back issue arose
unexpectedly and suddenly, and she is simply unable to continue, and as I
indicated, I think under the circumstances it is virtually impossible for
another prosecutor to conduct the trial in this matter, and as I already
indicated, I think the impact of a change in the prosecutors would be an
unjust burden on the State of Minnesota . . . .
(See id. at 4-5.) Retrial was scheduled to begin on January 22, 2013. (See id. at 5.)
On January 11, 2013, Fenstermaker moved to dismiss the charges against him on
double jeopardy grounds, arguing that jeopardy had attached during the first trial because
the jury had been sworn. (See id.) Fenstermaker argued that the court should reconsider
its previous finding of manifest necessity on the basis that two reasonable alternatives to
a mistrial had been present: (1) the State could have brought in a replacement prosecutor;
and (2) the court could have continued the trial one week. (See id.) The assigned
prosecutor, having recovered from her back injury, responded that requiring substitute
counsel at late notice would have been unfairly prejudicial to the State, and that a
continuance would not have been viable because the jury’s term of service was ending
and there was no way of knowing whether she would have been recovered within one
week. (See id.)
The district court denied the motion to dismiss, holding that it would have been
unfair to the State to require it to proceed with substitute counsel, and that, absent the
benefit of hindsight, there was no way of knowing that the assigned prosecutor would be
available if the trial had been continued.
(See id. at 5-6.)
After a short trial,
Fenstermaker was acquitted of the first-degree criminal sexual conduct charge, but
convicted of two counts of third-degree criminal sexual conduct. (See id. at 6.) On
appeal of the district court’s grant of a mistrial, the Minnesota Court of Appeals
concluded that although Fenstermaker’s situation presented a “close case,” the district
court had not abused its discretion. (See id. (quoting State v. Fenstermaker, No. A131082, 2014 WL 4290318, at *6 (Minn. Ct. App. Sept. 2, 2014)).)
Supreme Court denied a petition for review on November 18, 2014, exhausting
Fenstermaker’s direct appeals. (See id.)
Fenstermaker filed the present petition for a writ of habeas corpus on February 16,
2016. (See generally Habeas Pet.) Pursuant to statute and the local rules of this Court,
Fenstermaker’s petition was first referred to the magistrate judge for review. See 28
U.S.C. § 636; D. Minn. LR 72.1. The R&R submitted to this Court recommended that
the petition be denied. (See R&R at 14.) In support of that recommendation, Judge
Thorson particularly noted that trial judges are afforded “broad discretion” under
Supreme Court precedent to determine whether and when there is a manifest necessity for
a mistrial, and that in this instance, the state trial judge did not abuse that discretion. (See
id. at 12.) However, because the magistrate judge found that “reasonable jurists could
debate whether the manifest necessity standard was correctly applied in the instant case,”
she recommended that the Court issue a Certificate of Appealability (“COA”) allowing
Fenstermaker to appeal any adverse ruling to the Eighth Circuit if he so chooses. (See id.
Fenstermaker timely filed objections to the R&R, triggering this de novo review.
Standard of Review
As the magistrate judge properly recognized, a petition for habeas corpus must
surmount a particularly high bar before it will be granted. Under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), habeas relief is reserved for those state
court decisions that are “contrary to, or involve an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or
which are “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). “Clearly established
Federal law” includes “only the holdings, as opposed to the dicta, of [Supreme Court]
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
application” of these holdings “must be objectively unreasonable, not merely wrong;
even clear error will not suffice.” Id. (quotation omitted). Thus, the petitioner must
demonstrate 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, 562 U.S. 86, 103 (2011). On collateral review of state court decisions, “federal
judges are required to afford state courts due respect by overturning their decisions only
when there could be no reasonable dispute that they were wrong. Federal habeas review
thus exists as a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.” Woods, 135 S. Ct. at 1376
(internal quotation omitted).
Fenstermaker makes two primary objections to the R&R. First, he contends that
the magistrate judge erred in concluding that the state court’s mistrial decision was not an
“unreasonable application of Federal law” when “addressing substitution of counsel as an
alternative to granting a mistrial.” (Obj. at 2.) Second, and similarly, he argues that it
was error to find that the mistrial decision was not unreasonable when “addressing a
continuance as an alternative to granting a mistrial.” (Id. at 4.) The Court will address
both objections together.
The Constitution bars placing a defendant in jeopardy twice for the same offense.
See Gouleed v. Wengler, 489 F.3d 976, 981 (8th Cir. 2009) (citation omitted). In a jury
trial, “jeopardy attaches when a jury is empaneled and sworn.” Martinez v. Illinois, 134
S. Ct. 2070, 2074 (2014). However, under certain circumstances, a defendant may be
retried if the first trial ends without final resolution on the merits. See Arizona v.
Washington, 434 U.S. 497, 405 (1978). Specifically, the Constitution permits a second
trial where there was a “‘manifest necessity for the [mistrial], or the ends of public justice
would otherwise be defeated.’” Gouleed, 589 F.3d at 981 (quoting United States v.
Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)).
In the R&R, Judge Thorson properly noted that this “manifest necessity” standard
governing retrial does not require a finding of “absolute necessity”—only a “high
degree.” Id. (quoting Washington, 434 U.S. at 506). In addition, she recognized that the
trial court is afforded “broad discretion” in deciding whether such necessity exists in any
particular case. Illinois v. Somerville, 410 U.S. 458, 462 (1973). One consideration that
must be made, however, is whether “less drastic alternatives were available” before
declaring a mistrial.
Long v. Humphrey, 184 F.3d 758, 761 (8th Cir. 1999).
existence of a reasonable alternative necessarily suggests that there was no manifest
necessity for a mistrial. See United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir. 1993).
Here, the trial judge considered the very alternatives to a mistrial urged here by
Fenstermaker—that substitute counsel for the State could have been obtained, and that
trial could have been continued for one week. The judge found, however, that requiring a
substitute prosecutor would be unreasonable for those reasons recited in Part II of this
Opinion. Likewise, while the trial court considered continuing the trial for one week, it
declined to do so for the primary reason that there was no guarantee that the assigned
prosecutor’s back condition would have improved in such a short period of time.
As the Minnesota Court of Appeals did, Judge Thorson concluded that neither
ruling was an unreasonable application of clearly established federal law. (See R&R at
10-12.) In particular, she noted that while the Supreme Court has indicated that the “high
degree of necessity” standard is not satisfied in cases where “a prosecutor requests a
mistrial in order to buttress weaknesses in his evidence,” Washington, 434 U.S. at 507,
those are not the facts of this case. There was no suggestion of impropriety or deception
on the part of the prosecutor, and every indication suggested that her back injury was
both real and debilitating. Likewise, the trial judge’s concerns regarding the harm to the
State involved in requiring an inexperienced prosecutor to step in—with no rapport or
familiarity with witnesses or the jury—was reasonable. In light of these considerations,
this Court agrees with Judge Thorson that given the high degree of discretion afforded to
trial judges in determining the propriety of a mistrial, it was not manifestly unreasonable
to order one here.
In similar fashion, the magistrate judge was correct to find that it was not
manifestly unreasonable to conclude that a continuance was an inviable option, given the
short time remaining in the jury’s term of service, and the complete uncertainty regarding
when, if ever, the prosecutor would be available to return to the courtroom.
decisions cannot be judged with the benefit of hindsight, but as they appear at the time
they are made. Under the deferential standard required by Supreme Court precedent, it
was not beyond the pale of reasonableness for the trial judge to decline to grant a
continuance here. See Somerville, 410 U.S. at 462. Accordingly, the Court agrees with
Judge Thorson that no error of constitutional proportion occurred. Because the trial
judge’s decision to grant a mistrial did not represent an “extreme malfunction in the
state criminal justice system” warranting federal intervention, Harrington, 562 U.S. at
102 (quotation omitted), Fenstermaker’s petition must be denied.
CERTIFICATE OF APPEALABILITY
A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition
unless he is granted a COA. See 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A
COA cannot be granted unless the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a “showing” requires
demonstration “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, both the magistrate judge and the Minnesota Court of Appeals have
emphasized that Fenstermaker’s double jeopardy claim presents a “close case.” See
Fenstermaker, 2014 WL 4290318, at *6. Likewise, neither was able to uncover cases
addressing the “precise circumstances presented here.” (See R&R at 13.) See id. at *5.
Accordingly, because Judge Thorson concluded that reasonable jurists could debate the
outcome of this petition, she recommended that a COA should be granted.
This Court agrees. While it ultimately concludes—as did the magistrate judge and
the Minnesota Court of Appeals before it—that the trial judge did not err in granting a
mistrial, the issue is sufficiently debatable that Fenstermaker should have the option, if he
so chooses, of pursuing it further before the Eighth Circuit. Accordingly, a COA will be
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
Petitioner’s Objections to the Magistrate Judge’s March 17, 2017 Report
and Recommendation [Doc. No. 13] are OVERRULED;
The Court ADOPTS the Report and Recommendation [Doc. No. 11];
This action is DISMISSED with prejudice; and
Petitioner is GRANTED a Certificate of Appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 22, 2017
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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