Hicks v. Hammer

Filing 19

MEMORANDUM OPINION AND ORDER granting respondent's 8 Motion to Dismiss; Adopt Report and Recommendation 17 Report and Recommendation.(Written Opinion) Signed by Chief Judge John R. Tunheim on March 31, 2017. (DML) cc: Plaintiff. Modified on 3/31/2017 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-1861 (JRT/HB)

MO SAVOY HICKS,
Petitioner,
v.
STEVE HAMMER,

MEMORANDUM OPINION
AND ORDER ADOPTING REPORT
AND RECOMMENDATION OF THE
MAGISTRATE JUDGE GRANTING
RESPONDENT’S MOTION
TO DISMISS

Respondent.
Mo Savoy Hicks, #201228, MCF-Stillwater, 970 Pickett Street North,
Bayport, MN 55003, pro se.
Jonathan C. Audette, Assistant Anoka County Attorney, ANOKA
COUNTY ATTORNEY’S OFFICE, Anoka County Government Center,
2100 Third Avenue, Anoka, MN 55303, for respondent.

Petitioner Mo Savoy Hicks seeks federal review of his 420-month aggravated
sentence for Second-Degree Unintentional Felony Murder pursuant to Minn. Stat.
§ 609.19, subd. 2(1) (2014). After Hicks directly appealed the basis for the aggravated
sentence under the state sentencing guidelines, both the Minnesota Court of Appeals and
the Minnesota Supreme Court affirmed the sentence. Hicks subsequently filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that the imposition of
the aggravated sentence violated his due process and equal protection rights under the
Fifth and Fourteenth Amendments.
Respondent Steve Hammer (“Respondent”) moves to dismiss Hicks’ petition,
arguing that Hicks failed to present a federal claim in state court.

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United States

Magistrate Judge Hildy Bowbeer issued a report and recommendation (“R&R”)
recommending dismissal of Hicks’ petition. Hicks now objects to the R&R. Because the
Court finds that Hicks failed to present a federal claim to the state court, the Court will
overrule Hicks’ objections, adopt the R&R, and grant Respondent’s motion to dismiss.

BACKGROUND
After a bench trial, on February 17, 2012, the Anoka County District Court
convicted Hicks on one count of Second-Degree Unintentional Felony Murder. (Pet. for
Relief from Conviction or Sentence (“Pet.”) at 17, June 6, 2016, Docket No. 1.) Hicks
represented himself during sentencing and waived his Sixth Amendment right, as
established in Blakely v. Washington, 542 U.S. 296 (2004), to a jury determination of
facts supporting an aggravated sentence. (Id. at 18.) The state court sentenced Hicks to a
420-month term of imprisonment, which included an upward durational departure,
resulting in a sentence 168 months longer than the presumptive sentence. (Id. at 17);
State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015). The departure was based on the state
court’s factual finding that Hicks concealed the victim’s body, which the sentencing court
determined was an indicator that the crime was carried out with “particular cruelty” – an
aggravating factor under Minnesota’s sentencing guidelines. (Pet. at 18); Hicks, 864
N.W.2d at 156.
Hicks appealed his sentence to the Minnesota Court of Appeals, arguing that
concealment of a body alone does not justify a finding that a crime was particularly cruel
under applicable precedent and also that concealment of a body alone cannot justify an

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upward departure because it is a separate uncharged offense. 1 The Minnesota Court of
Appeals affirmed the sentence on September 3, 2013. State v. Hicks, 837 N.W.2d 51
(Minn. Ct. App. 2013).
Hicks filed a petition for review with the Minnesota Supreme Court, which agreed
to review the propriety of the aggravated sentence based solely on the finding that Hicks
concealed the body. The Minnesota Supreme Court affirmed on June 3, 2015, holding
that “concealment of a homicide victim’s body, in and of itself, may be an aggravating
factor under the [state] sentencing guidelines that supports an upward durational
sentencing departure.” Hicks, 864 N.W.2d at 159. Hicks amounted to a slight change in
state law, abrogating the existing precedent set in State v. Schmit, 329 N.W.2d 56, 58 n.1
(Minn. 1983) (finding that concealment of the victim’s body did not operate as an
aggravating factor in sentencing because the “defendant made no effort to bargain with
information concerning the location of the body”). 2
On June 6, 2016, Hicks filed a federal habeas petition pursuant to 28 U.S.C.
§ 2254 seeking review of his aggravated sentence. In the petition, Hicks presents one
ground for relief: that he “was denied his 5th and 14th Amendment rights to Due

1

Specifically, Hicks argued that under Minnesota precedent, an upward departure cannot
be based on uncharged or dismissed conduct, and interference with a dead body is a separate,
uncharged offense under Minn. Stat. § 609.502, subd. 1.
2

The Minnesota Supreme Court also clarified that under Minnesota law, imposition of
the sentence based on the aggravating factor was proper in Hicks’ case even though the relevant
facts also could have supported a charge for a separate offense. The court explained that “facts
from a single behavioral incident that relate to multiple offenses may be relied on to support a
durational departure ‘if those facts show that the defendant committed the offense being
sentenced in a particularly serious way.’” Hicks, 364 N.W.2d at 162 (quoting State v. Edwards,
774 N.W.2d 596, 604 (Minn. 2009)).
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Process/Equal Protection.”

(Pet. at 18.)

More specifically, Hicks alleges “[t]he

Minnesota Supreme Court violated Hicks[’] right to due process when it arbitrarily and
discriminatorily overruled precedent set by previous case law to affirm Hicks’ upward
departure.” (Id.)
On August 15, 2016, Respondent filed a motion to dismiss Hicks’ petition.
Respondent argues the petition should be dismissed because Hicks did not present a
federal claim to the state court regarding the propriety of his aggravated sentence.
(Resp’t’s Mem. of Law in Supp. of Mot. to Dismiss at 1, Aug. 15, 2016, Docket No. 9.)
Hicks responded that he did present a federal claim in state court because his brief to the
Minnesota Supreme Court cited Blakely, a federal constitutional case. (Pet’r’s Obj. to
Resp’t’s Mot. to Dismiss at 2, Sept. 19, 2016, Docket No. 16.)
The Magistrate Judge issued an R&R on January 19, 2017, recommending
dismissal of Hicks’ petition. (R&R, Jan. 19, 2017, Docket No. 17.) The Magistrate
Judge found that Hicks did not present due process or equal protection claims to the state
courts, nor did Hicks present a Blakely claim, and therefore these claims are procedurally
defaulted. (Id. at 4, 7.) The Magistrate Judge further concluded that Hicks failed to
demonstrate a basis for the Court to overlook the procedural default because Hicks did
not show cause for the default, actual prejudice, or that a miscarriage of justice would
occur if the Court did not address the merits of the claims, (id. at 6-7), as would be
required for the Court to review the merits of Hicks’ claim despite the procedural default,
see McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997). Hicks filed objections to the
R&R on February 6, 2017. (Pet’r’s Obj. to R&R (“Obj.”), Feb. 6, 2017, Docket No. 18.)
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ANALYSIS
I.

STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may “file specific written

objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions of the
magistrate judge’s report and recommendation to which objections are made and provide
a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2
(D. Minn. Sept. 28, 2008). On a dispositive motion the Court reviews “properly objected
to” portions of an R&R de novo.

Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR

72.2(b)(3).

II.

HICKS’ OBJECTIONS
Hicks asserts that he fairly presented a federal claim to the Minnesota Supreme

Court. (Obj. at 1.) Hicks makes two specific objections to the R&R on this point: (1) the
R&R misconstrues Hicks’ argument before the state court regarding a state case, State v.
Rourke, 773 N.W.2d 913 (Minn. 2009); and (2) contrary to the R&R’s holding, by citing
Rourke, Hicks did properly raise a “pertinent federal constitutional issue” before the state
court. (Obj. at 2.)

A.

Legal Standard

“[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, 114

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F.3d at 756-57 (quoting Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996)). “In order
to fairly present a federal claim to the state courts, the petitioner must have referred to ‘“a
specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue” in a
claim before the state courts.’” Id. at 757 (quoting Myre v. Iowa, 53 F.3d 199, 200-01
(8th Cir. 1995)). A petitioner must not only present a federal claim in state court, but also
exhaust all potential state remedies before a federal court will consider the merits of the
federal claim. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842-43
(1999).
A federal claim may be exhausted when there are no available state remedies
because a petitioner failed to raise the federal claim in state court when it had the
opportunity to do so. In such circumstances, if a state procedural rule will no longer
allow presentation of the federal claim, the claim is procedurally defaulted.

If

consistently followed, a state’s procedural rule barring the claim constitutes an
“independent and adequate” state-law ground preventing the federal court from reviewing
the claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Minnesota’s procedural
rule – that “a petition for postconviction relief raising claims that were raised on direct
appeal, or were known or should have been known but were not raised at the time of the
direct appeal, are procedurally barred,” unless “(1) the claim is novel or (2) the interests
of fairness and justice warrant relief”, Andersen v. State, 830 N.W.2d 1, 8 (Minn. 2013) –
is an adequate and independent state-law basis for denial of a federal claim, Murray v.
Hvass, 269 F.3d 896, 899-900 (8th Cir. 2001). A federal court will only consider the
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merits of a procedurally-defaulted federal claim if the petitioner “can demonstrate either
cause and actual prejudice, or that a miscarriage of justice will occur if we do not review
the merits of the petition.” McCall, 114 F.3d at 757.

B.

Hicks’ Objections

Moving to Hicks’ objections, first Hicks argues that the Magistrate Judge
misconstrued Hicks’ reliance on State v. Rourke, 773 N.W.2d 913, 919 (Minn. 2009), in
Hicks’ arguments before the Minnesota Supreme Court.

According to Hicks, the

Magistrate Judge improperly found “that [Hicks] use[d] Rourke . . . for a two-part test
determining when an upward departure is justified,” when Hicks in fact cited the case “to
challenge the upward departure ground of ‘Particular Cruelty’ used by the Court to depart
from the guidelines.” (Id. at 2.)
In Rourke, the Minnesota Supreme Court considered how the Supreme Court’s
decision in Blakely applies to Minnesota’s sentencing regime.

The Rourke court

distinguished between “facts” used to support imposition of an aggravated sentence,
which must be specifically found by a jury under Blakely, and “reasons” to support an
aggravated sentence, which are not subject to Blakely’s jury-trial requirement. Rourke,
773 N.W.2d at 921-22. The Rourke court further determined that “particular cruelty” is a
“reason” for imposing an aggravated sentence, rather than a “fact,” and therefore a
determination whether facts before the court constitute “particular cruelty” is within a
judge’s purview and is not subject to Blakely. Id.

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In Hicks’ briefing before the Minnesota Supreme Court, Hicks cited Rourke for
the general principle of Minnesota law that, after Blakely, there are
two distinct requirements for an upward sentencing departure: (1) a factual
finding that there exist one or more circumstances not reflected in the guilty
verdict . . . and (2) an explanation by the district court as to why those
circumstances create a substantial and compelling reason to impose a
sentence outside the range on the grid.
(Pet’r’s Obj. to Resp’t’s Mot. to Dismiss, Ex. 1 at 8-9 (quoting Rourke, 773 N.W.2d at
919).) In the same brief, Hicks also cited Minnesota’s general definition of “particular
cruelty” found in Rourke – “the gratuitous infliction of pain and cruelty ‘of a kind not
usually associated with the commission of the offense in question.’” (Id. at 9 (quoting
Tucker v. State, 799 N.W.2d 583, 586 (Minn. 2011) (quoting Rourke, 773 N.W.2d at
922)).) Hicks did not cite Rourke anywhere else in the brief, but he did more generally
argue, with reference only to Minnesota cases, that the facts of his crime did not involve
particular cruelty given that he merely buried the victim’s body, which did not involve
the “gratuitous infliction of pain and cruelty” on the victim. (Id. at 15 (quoting Tucker,
799 N.W.2d at 587).)
The Court finds that under even a generous construction of Hicks’ objection to the
R&R and briefing before the state court, Hicks’ citation of Rourke’s definition of
“particular cruelty” in his briefing before the state court did not amount to the
presentation of a federal claim, let alone a due process or equal protection claim. See
McCall, 114 F.3d at 757. While Rourke is a state case that does refer to a particular
federal constitutional case, that federal case (Blakely) is not “pertinent” to any of the
claims Hicks asserts in his habeas petition. See id. Furthermore, Blakely also was not
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particularly pertinent to any of Hicks’ claims before the state court. (See R&R at 3-4.)
Hicks waived his Blakely rights before sentencing and at no point has Hicks argued that
the facts supporting the aggravating factor of concealing the victim’s body should have
been found by a jury beyond a reasonable doubt, as Blakely would require. Furthermore,
the Rourke definition of “particular cruelty,” and the question of whether the sentencing
court properly applied that definition, are matters of state law as opposed to federal law. 3
Under his second objection, Hicks claims that Rourke raises “a pertinent federal
constitutional issue,” and thus the Magistrate Judge incorrectly decided that Hicks failed
to raise a federal claim before the state courts as required under McCall, 114 F.3d at 75657. Hicks argues that “[t]he test in Rourke was whether the ‘Particular Cruelty’ ground
was unconstitutionally vague, [and] the Court found that it was, [invoking] the void-forvagueness doctrine.” (Obj. at 2.)
However, the Rourke court made the opposite holding, concluding “that the voidfor-vagueness doctrine does not apply to the aggravating factor of particular cruelty.”
Rourke, 773 N.W.2d at 922 (emphasis added). Furthermore, if Hicks wishes to challenge
the application of an aggravating factor under Minnesota’s sentencing guidelines based
on the argument that the guidelines are unconstitutionally vague, any such claim is
3

Even if the Court believed that Hicks’ act of concealing the victim’s body did not
amount to “particular cruelty” under Minnesota law, the Minnesota Supreme Court did not
uphold Hicks’ sentence on the basis that his act of concealing the victim’s body was particularly
cruel. Instead, the court decided to recognize a new type of “substantial and compelling”
circumstance that can justify an upward departure from a presumptive sentence under
Minnesota’s sentencing guidelines, given that the sentencing guidelines list “nonexclusive”
factors that may be used as reasons for departure. Hicks, 864 N.W.2d at 157, 160. This holding
was based on an interpretation of applicable state law; Hicks has not provided a basis for the
Court to conclude that the state court’s decision to recognize a new aggravating factor violated
Hicks’ federal constitutional rights.
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procedurally defaulted because Hicks failed to present this claim in state court when he
had the opportunity. See Coleman, 501 U.S. at 750; Murray, 269 F.3d at 899-900;
Andersen, 830 N.W.2d at 8. For these reasons, the Court will overrule Hicks’ objections.
The Court has reviewed the portions of the R&R that were not the subject of
specific objections, and the Court concurs with the Magistrate Judge that Hicks has not
shown cause and prejudice, nor has he shown that the Court’s decision not to hear a
Blakely claim or any other federal claim based on the Fifth and/or Fourteenth
Amendments would result in a miscarriage of justice. (R&R at 6-7.) For all of these
reasons, the Court will adopt the R&R in full and grant Respondent’s motion to dismiss.

III.

CERTIFICATE OF APPEALABILITY
The Court may grant a Certificate of Appealability only where the movant “has

made a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§ 2253(c)(2). The movant must show “that the issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the issues deserve further
proceedings.” Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For purposes of appeal under 28 U.S.C. § 2253,
the Court finds that Hicks has not shown that reasonable jurists would find the question
of whether Hicks’ federal claims are procedurally defaulted is debatable, that some other
court would resolve the issues differently, or that the issues deserve further proceedings.
The Court therefore declines to grant a Certificate of Appealability in this case.

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Petitioner Mo Savoy Hicks’ objections [Docket No. 18], and
ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 17].
Accordingly IT IS HEREBY ORDERED that:
1.

Respondent Steve Hammer’s Motion to Dismiss [Docket No. 8] is

GRANTED.
2.

Petitioner Hicks’ Petition for Writ of Habeas Corpus [Docket No. 1] is

DISMISSED with prejudice.
3.

For the purposes of appeal, the Court does NOT grant a Certificate of

Appealability under 28 U.S.C. § 2253(c)(2).

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 31, 2017
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
Chief Judge
United States District Court

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