Yang v. Knutson
Filing
19
MEMORANDUM OPINION AND ORDER granting 8 Motion to Dismiss/General; adopting 13 Report and Recommendation. Petitioner Taeng Yang's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus [Doc. No. 1] is DISMISSED WITH PREJUDICE and Petitioner shall NOT be granted a Certificate of Appealability. (Written Opinion) Signed by Judge Susan Richard Nelson on 8/30/2018. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Taeng Yang,
Case No. 18-cv-00014 (SRN/TNL)
Petitioner,
MEMORANDUM OPINION
AND ORDER
v.
Nate Knutson,
Respondent.
Taeng Yang, #234617, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake,
Minnesota 55767, pro se Petitioner.
Edwin William Stockmeyer, III and Matthew Frank, Office of the Minnesota Attorney
General, 445 Minnesota Street, Saint Paul, Minnesota 55101, and Peter R. Marker,
Ramsey County Attorney’s Office, 345 Wabasha Street North, Suite 120, Saint Paul,
Minnesota 55102, for Respondent.
SUSAN RICHARD NELSON, United States District Judge
I.
INTRODUCTION
This matter is before the Court for consideration of Petitioner Taeng Yang’s
Objection [Doc. No. 16] (“Obj.”) to Magistrate Judge Tony N. Leung’s June 12, 2018
Report and Recommendation [Doc. No. 13] (“R&R”). The magistrate judge recommended
granting Respondent’s Motion to Dismiss [Doc. No. 8] and dismissing Petitioner’s Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus [Doc. No. 1] (“Petition”). For the
reasons set forth below, the Court overrules Petitioner’s Objection and adopts the R&R in
its entirety.
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II.
BACKGROUND
The R&R documents the relevant factual and procedural background of this case,
and the Court incorporates it by reference. Briefly stated, Petitioner was convicted after a
jury trial of one count of felony domestic assault, Minn. Stat. § 609.2242, subdiv. 4, and one
count of terroristic threats, Minn. Stat. § 609.713, subdiv. 1. State v. Yang, No. A16-0233,
2017 WL 474400, at *1-2 (Minn. Ct. App. Feb. 6, 2017).1 Petitioner did not testify at trial,
and he attempted to call two eyewitnesses who both exercised their Fifth Amendment rights
against self-incrimination. Id. at *2. In addition to finding Petitioner guilty on both counts,
the jury found that the State had proved three aggravating sentencing factors. Id. The
district court sentenced Petitioner to 60 months imprisonment for the domestic assault
crime, a double-upward departure from the sentencing guidelines, and did not impose any
sentence for the terroristic threats offense. Id. at *2, 7.
Petitioner filed a counseled direct appeal to the Minnesota Court of Appeals. See
generally id. Petitioner’s counsel challenged the district court’s decisions on four issues:
(1) denial of Petitioner’s pretrial request for appointment of a different public defender,
(2) permitting the State to offer relationship evidence about Petitioner and his alleged
victim, (3) ruling that the State could impeach Petitioner with a previous burglary
conviction if he chose to testify, and (4) declining to bifurcate the guilt and aggravating-
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This statement of the factual and procedural history of the case is drawn in part
from the opinion of the Minnesota Court of Appeals affirming Yang’s conviction, Yang,
2017 WL 474400, which both Petitioner and Respondent have submitted to the Court.
(Exs. to Mem. of Law in Supp. of Habeas Corpus Pet. [Doc. No. 3], Ex. A [Doc. No. 31]; Exs. to Mem. of Law in Supp. of Mot. to Dismiss Habeas Corpus Pet. [Doc. No. 10],
Ex. 4 [Doc. No. 10-3].)
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sentencing-factor issues of the trial. Id. at *2-6. The court of appeals affirmed the district
court’s decisions on these issues.
Petitioner filed a supplemental pro se brief to the court of appeals, which raised four
additional issues: (1) whether the district erred in denying Petitioner his Sixth Amendment
right to compulsory process for calling witnesses in his defense, (2) whether he received
ineffective assistance of trial counsel because his counsel failed to employ compulsory
process to call witnesses in his defense, (3) whether evidence was sufficient to support his
convictions, and (4) whether his conviction for two crimes arising out of a single act or
incident violates his Fifth Amendment right to be free from Double Jeopardy. (Exs. to
Mem. of Law in Supp. of Habeas Corpus Pet. [Doc. No. 3] (“Habeas Exs.”), Ex. E [Doc.
No. 3-6] (Supplemental Br. at 2).) The court of appeals rejected these arguments on their
merits as well. Yang, 2017 WL 474400, at *6-7.
After the court of appeals issued its opinion affirming Petitioner’s conviction,
Petitioner filed a counseled Petition for Review to the Minnesota Supreme Court, which has
discretionary review of most felony conviction in the State of Minnesota. See Minn. R.
Crim. P. 29.02, subdiv. 2. The Petition for Review raised the same four issues that
Petitioner’s counsel raised in the direct appeal to the court of appeals. (Habeas Exs., Ex. C
[Doc. No. 3-4] (Petition for Review at 2).) As a fifth issue for review, the Petition stated
“Yang also asks this Court to accept review of all the issues raised in his pro se
supplemental brief, and to accept the pro se supplement petition for review, which is filed
separately with an accompanying motion.”
(Id. at 7.)
Petitioner also filed with the
Minnesota Supreme Court a motion for acceptance of his pro se Petition for Review, stating
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that “Petitioner filed a pro se supplemental brief in the court of appeals and now wishes to
file a supplemental petition for review of those issues raised in his pro se brief. (Habeas
Exs., Ex. C [Doc. No. 3-3] (Pro Se Pet. for Review).) The Minnesota Supreme Court
denied this motion, and also denied Petitioner’s counseled Petition for Review. (Exs. to
Mem. of Law in Supp. of Mot. to Dismiss Habeas Corpus Pet. [Doc. No. 10], Ex. 7 [Doc.
No. 10-6] (Order dated 3/8/17); Habeas Exs., Ex. B [Doc. No. 3-2] (Order dated
4/26/17).)
On January 2, 2018, Petitioner filed his § 2254 Petition for Writ of Habeas Corpus
in this Court. Petitioner bases his Petition on the same four arguments that he made in his
pro se supplemental brief to the court of appeals. (See Mem. of Law in Supp. of Habeas
Corpus Pet. [Doc. No. 2] at 2; Habeas Exs., Ex. E (Supplemental Br. at 2).) Respondent
filed a Motion to Dismiss, arguing that Petitioner’s claims were not fairly presented to the
Minnesota Supreme Court and are now procedurally defaulted. (Mem. of Law in Supp.
of Mot. to Dismiss Pet. for Habeas Corpus [Doc. No. 9] at 1.)
Magistrate Judge Tony N. Leung issued an R&R recommending that Respondent’s
Motion be granted and Petitioner’s Petition be dismissed. The magistrate judge determined
that Petitioner did not fairly present his federal claims to the Minnesota Supreme Court
because he did not include them in his counseled Petition for Review. (R&R at 12-14.) The
magistrate judge further held that Petitioner’s claims were now procedurally defaulted under
State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976), and that Petitioner has not
demonstrated cause and prejudice or the danger of a miscarriage of justice to overcome the
procedural-default rule. (R&R at 15-18.) The magistrate judge recommended that the
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Court not issue a certificate of appealability. (Id. at 18-19.) Petitioner filed an Objection,
which the Court considers below.
III.
DISCUSSION
A. Standard of Review
A party “may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations.” D. Minn. LR 72.2(b)(1). The district court will
review de novo those portions of the R&R to which an objection is made, and it “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); Fed. R. Civ. P. 72(b)(3); D. Minn. LR
72.2(b)(3).
B. Applicable Law
“[A] district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgement of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Petitioner is being held pursuant to the judgment of a state court, so
his habeas petition is governed by § 2254.
A writ of habeas corpus under § 2254 “shall not be granted” with respect to any
claim that has been adjudicated on the merits in state court unless the state court proceeding
“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.” 28 U.S.C.
§ 2254(d). Before seeking a writ of habeas corpus, a state prisoner must exhaust all
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available state remedies. Id. § 2254(b)(1). To provide the state with an opportunity to
adjudicate and correct alleged violations of its prisoners’ federal rights, “the prisoner must
‘fairly present’ his claim in each appropriate state court (including a state supreme court
with powers of discretionary review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam)).
If a petition for habeas corpus contains claims that have not been fairly presented to
the highest state court, the Court must determine whether those claims are (1) unexhausted
and may still be presented to the state court, or (2) procedurally defaulted by operation of an
independent and adequate state procedural rule precluding further litigation in the state
courts. See 28 U.S.C. § 2254(c); Fraction v. Minnesota, 678 F. Supp. 2d 908, 917 (D.
Minn. 2008) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). If the petitioner’s
claim is procedurally defaulted, that is, subject to a procedural bar in the state court, the
Court must dismiss the petition unless the petitioner can demonstrate “cause and prejudice
for the procedural default,” Dretke v. Haley, 541 U.S. 386, 393 (2004), or that “failure to
consider the claims will result in a fundamental miscarriage of justice,” Coleman, 501 U.S.
at 750.
C. Analysis
1. Exhaustion
Petitioner objects to the magistrate judge’s determination that he has not exhausted
the claims in his Petition because he did not fairly present his federal claims to the
Minnesota Supreme Court for review. He asserts that his pro se arguments were included in
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the counseled Petition for Review because it asked the court to decide whether “the issues
raised in Yang’s pro se supplemental brief warrant review.” (Obj. at 8 (citing Habeas Exs.,
Ex. C (Pet. for Review at 2)).) Petitioner argues that he has “exhausted his state remedies
by properly pursuing a claim through the entire appellate process.” (Id. (citing Clements v.
Maloney, 485 F.3d 158, 168 (1st Cir. 2007)).)
The magistrate judge held that Petitioner has not exhausted his claims because the
incorporation of his pro se arguments in his counseled Petition for Review did not “‘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.’” (R&R
at 12 (quoting Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005)).) As the Supreme Court
stated in Baldwin v. Reese, “a state prisoner does not ‘fairly present’ a claim to a state court
if that court must read beyond a petition or a brief (or a similar document) that does not alert
it to the presence of a federal claim in order to find material, such as a lower court opinion
in the case, that does so.” 541 U.S. at 31. The magistrate judge found that Petitioner’s
reference to his supplemental brief in the court of appeals proceeding was insufficient to
alert the Minnesota Supreme Court to the federal claims therein. (R&R at 13 (citing Foster
v. Fabian, No. 07-cv-4317, 2009 WL 921063, at *8 (D. Minn. Mar. 31, 2009) (“[A]s other
Courts in this District have held, ‘incorporation’ of a lower court decision or briefs
submitted to such a lower court, without identifying the federal issue in the petition for
review, is insufficient to fairly present a federal claim for the purposes of exhaustion.”)).)
Petitioner’s reference to Clements v. Maloney does not persuade the Court that the
magistrate judge’s reasoning is wrong. In Clements, the First Circuit Court of Appeals
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discussed its ruling in Barresi v. Maloney, 296 F.3d 48, 52 (1st Cir. 2002), that a claim may
be fairly presented if the filing is ambiguous as to whether the issue derives from state or
federal law and the review of “certain ‘backdrop’ materials” in the case shows the issue to
be federal in nature. Clements, 485 F.3d at 162-63 (citing Barresi, 296 F.3d at 52). The
court in Clements noted, however, that Barresi may have been invalidated by Baldwin, and
ultimately distinguished the case rather than applying it. Id. at 162, 164-65. Clements is not
binding precedent, and it carries little persuasive weight in light of the Supreme Court’s
decision in Baldwin, 541 U.S. at 31.
Petitioner also argues that “[c]ourts may dispense with the exhaustion requirement if
further state court litigation would be futile.” (Obj. at 7.) Petitioner cites Grey v. Hoke, 933
F.2d 117, 120 (2d Cir. 1991) and Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004), to
support this assertion. But in both of those cases, the court simply held that it need not
determine whether all of the petitioner’s claims were exhausted, because even if they were
unexhausted, they were procedurally defaulted. Grey, 933 F.2d at 120; Slutzker, 393 F.3d
at 380. Because the magistrate judge found that Petitioner’s unexhausted claims were also
barred by the procedural default rule, these cases do not have any effect on the magistrate
judge’s reasoning. The Court will adopt the magistrate judge’s determination that Petitioner
did not exhaust the claims in his Petition.
2. Cause and Prejudice
The magistrate judge found that Petitioner’s unexhausted claims were procedurally
defaulted by operation of State v. Knaffla, 243 N.W.2d at 741. (R&R at 16.) Because the
procedural default rule applies, the Court must dismiss Petitioner’s Petition unless he can
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demonstrate “cause and prejudice for the default, or that the failure to consider the claims
will result in a fundamental miscarriage of justice.” Fraction, 678 F. Supp. 2d at 917 (citing
Coleman, 501 U.S. at 750). Petitioner raises no argument that failure to consider his
Petition will result in a miscarriage of justice. He does argue, for the first time in his
Objection to the R&R, that ineffective assistance of his appellate counsel constitutes cause
and prejudice excepting his procedural default. (Obj. at 1.) Petitioner asserts that his
appellate counsel’s assistance fell below an objective measure of reasonableness because
appellate counsel failed to raise ineffective assistance of counsel in his direct appeal and
failed “to effectively and adequately raise the factual and legal issues that petitioner
preserved for relief during the course of his direct appeal.” (Id. at 1-3.)
“[T]he general rule is that ‘a claimant must present all of his claims squarely to the
magistrate judge, that is, the first adversarial forum, to preserve them for review.’” Britton
v. Astrue, 622 F. Supp. 2d 771, 776 (D. Minn. 2008) (quoting Roberts v. Apfel, 222 F.3d
466, 470 (8th Cir. 2000)). Petitioner did not raise his argument that ineffective assistance of
appellate counsel provides cause for procedural default until his Objection to the magistrate
judge’s R&R, so he has not properly preserved this argument. Even if he had, however, the
argument would fail for two reasons: (1) Petitioner has not exhausted his state remedies on
this issue and (2) even if Petitioner had exhausted his state remedies, Petitioner cannot show
prejudice from his appellate counsel’s failure to present his pro se arguments.
The procedural default rule derives from “the important interest in finality served by
state procedural rules, and the significant harm to the States that results from the failure of
federal courts to respect them.” Coleman, 501 U.S. at 750. Cause justifying procedural
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default “must be something external to the petitioner, something that cannot fairly be
attributed to him.” Id. at 753. Attorney error can constitute such cause, but only if the
attorney’s performance is so deficient that it constitutes ineffective assistance of counsel, a
constitutionally-actionable violation. Id. at 752; see Strickland v. Washington, 466 U.S. 668
(1984).
However, because ineffective assistance of counsel must be an independent
constitutional claim to constitute cause for procedural default, it is itself subject to the
finality and comity principles that require exhaustion of state remedies. See Edwards v.
Carpenter, 529 U.S. 446, 451-52 (2000); Murray v. Carrier, 477 U.S. 478, 488-89 (1986).
A claim of ineffective assistance of appellate counsel is excepted from the Knaffla
bar and may be raised for the first time in a first postconviction appeal under Minn. Stat.
§ 590.01. Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007). The Court has seen no
evidence on the record that Petitioner has filed a first postconviction appeal, and
Minnesota statute provides that a postconviction appeal may be filed within two years of
an appellate court’s disposition of the petitioner’s direct appeal. Minn. Stat. § 590.01,
subdiv. 4(a)(2).
Thus, Petitioner’s argument that ineffective assistance of appellate
counsel was cause for his failure to exhaust remedies is itself unexhausted. See Edwards,
529 U.S. at 451-52.
Further, in order to show ineffective assistance of counsel, Petitioner must show that
his counsel made an error that prejudiced his defense, that is, he must demonstrate “‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davis v. United States, 858 F.3d 529, 532 (8th Cir.
2017) (quoting Strickland, 466 U.S. at 694). The court of appeals addressed on the merits
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and rejected each of the grounds for relief that Petitioner asserts his counsel should have
presented in his Petition for Review. See Yang, 2017 WL 474400, at *6-7. Petitioner’s
arguments that he was deprived of his right to compulsory process, and that his trial counsel
was ineffective for failing to use compulsory process on his behalf, were both rejected
because the two witnesses who Petitioner’s trial counsel subpoenaed exercised their Fifth
Amendment rights against self-incrimination. Id. The court of appeals rejected Petitioner’s
sufficiency-of-the-evidence argument because he had stipulated to the element that he
alleged was missing from the domestic assault charge, and because the element that he
argued was missing from the terroristic threats charge was not actually a required element.
Id. at *7. Finally, the court of appeals held that Petitioner was not charged with two crimes
arising out of the same incident, and that he was not subject to multiple punishments
because was sentenced for only one of his convictions. Id. None of these arguments is
sufficiently meritorious that Petitioner’s counsel’s failure to raise them constitutes
prejudicial error. Petitioner has failed to demonstrate cause and prejudice to justify his
procedural default and his Petition must be dismissed.
3. Certificate of Appealability
Petitioner objects to the magistrate judge’s recommendation that this Court not grant
a certificate of appealability. (Obj. at 5-7.) A certificate of appealability “may issue . . .
only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Petitioner argues that the magistrate judge erred by failing to
construe all the allegations in his Petition as true, but he cites no binding precedent requiring
the magistrate judge to do so. (Obj. at 5-6.) Petitioner further argues that the magistrate
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judge erred by failing to liberally construe his Petition. (Id. at 6-7.) The Court disagrees.
Short of reading arguments into Petitioner’s filings that were not there, the magistrate judge
liberally construed the Petition and his recommendation against granting a certificate of
appealability is sound. The Court will adopt it.
IV.
ORDER
The Court OVERRULES Petitioner’s Objection [Doc. No. 16] and ADOPTS the
Magistrate Judge’s June 12, 2018 Report and Recommendation [Doc. No. 13].
Accordingly, IT IS HEREBY ORDERED that:
1. Respondent Nate Knutson’s Motion to Dismiss Petition for Habeas Corpus
[Doc. No. 8] is GRANTED;
2. Petitioner Taeng Yang’s Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus [Doc. No. 1] is DISMISSED WITH PREJUDICE; and
3. Petitioner shall NOT be granted a Certificate of Appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
August 30, 2018
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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