Smith v. Bosch

Filing 59

MEMORANDUM OPINION AND ORDER dismissing 43 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge and affirming the Magistrate Judge's Order. (Written Opinion) Signed by Judge John R. Tunheim on 8/2/2022. (HMA)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DERRICK Z. SMITH,

Civil No. 20-1163 (JRT/DTS)
Plaintiff,

v.
GUY BOSCH, Acting Warden of MCF Stillwater

MEMORANDUM OPINION AND ORDER
AFFIRMING THE MAGISTRATE JUDGE’S
ORDER

Defendant.

Erik Money, Joseph T. Dixon, III, and William T. Wheeler, FREDRIKSON &
BYRON, PA, 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402, for
plaintiff.
Jean E. Burdorf, HENNEPIN COUNTY ATTORNEY’S OFFICE, 300 South Sixth
Street, Suite A-2000, Minneapolis, MN 55487; Edwin W. Stockmeyer, III and
Matthew Frank, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, 445
Minnesota Street, Suite 1800, Saint Paul, MN 55101, for defendant.
Respondent Guy Bosch appeals Magistrate Judge David Schultz’s order finding that
the record is incomplete and also appeals the order for the parties to submit additional
documents, evidence, and supplemental briefing. Derrick Smith petitions the Court for a
writ of habeas corpus, claiming that the prosecutors’ last-minute disclosure of potentially
exculpatory evidence prior to his trial violated his due process rights under Brady v.
Maryland, 373 U.S. 83 (1963). Smith asks the Court to vacate his conviction and order a
new trial. In reviewing Smith’s habeas petition (the “Petition”), the Magistrate Judge

concluded that the record before the Court was insufficient to support a
recommendation. Because further briefing is appropriate, the Court will affirm the
Magistrate Judge’s order.
BACKGROUND
I.

FACTUAL BACKGROUND
Derrick Smith was convicted of aiding and abetting first and second-degree

murder. State v. Smith, 932 N.W.2d 257, 263 (Minn. 2019). In late 2016, Smith allegedly
devised a plan to rob Richard Ambers with three co-conspirators. Id. at 262. The plan
derailed and Ambers was murdered by one of Smith’s co-conspirators. Id. at 262–63.
While Smith did not fire the gun, the prosecution argued that he was the ultimate “shot
caller” in the operation or, in other words, the leader. (Resp. Order to Show Cause, Ex. 2,
at 50, June 16, 2020, Docket No. 17-2.) 1
In June 2017, six months prior to trial, Smith requested the recordings of several
calls he made from jail in December and January of 2016 and 2017. Smith, 932 N.W.2d at
263. Prosecutors did not turn over the recordings until mid-December 2017 and Smith’s
attorney did not discover that the calls were available until December 27, 2017—just six
days prior to trial. Id. The disclosure contained approximately seventy-five hours of
recordings. Id. On the first day of trial, Smith motioned for a continuance to review the

1

All page citations are to the ECF page number assigned by the Court.

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jail-call recordings. Id. The motion was denied, and Smith’s attorney was instructed to
renew the motion after jury selection if he found any exculpatory evidence in the
recordings. (Decl. of Sebastian Mesa-White at ¶ 5, May 12, 2021, Docket No. 35.) The
next week, after reviewing roughly eight hours of the recordings, Smith’s attorney
renewed the motion. (Id. at ¶ 6.) The trial court again denied the motion and Smith was
convicted. Smith, 932 N.W.2d at 263–64.
Smith appealed his conviction to the Minnesota Supreme Court, arguing, among
other things, that the trial court abused its discretion in denying his motion for a
continuance to review the recordings. (Resp. Order to Show Cause, Ex. 2, at 13.) In his
argument before the state court, Smith stated that he believed the “calls contained Brady
material” that “would have undercut the State’s theory that Smith aided and abetted [his
co-conspirator] in shooting Ambers.” (Id. at 47, 50.) In particular, Smith pointed to a call
between Smith and an alleged co-conspirator where the two stated that one of Smith’s
co-conspirators was the one leading the pack and was throwing innocent people, like
Smith, under the bus. (Id. at 24.) Ultimately, after review of Smith’s petition, the
Minnesota Supreme Court affirmed the trial court’s decision to deny the motion for a
continuance. Smith, 932 N.W.2d at 272.
II.

PROCEDURAL HISTORY
Smith petitioned the Court for a writ of habeas corpus arguing that the

prosecution’s late disclosure of the recordings constituted a denial of access to
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exculpatory or favorable evidence in violation of the rule established in Brady, 373 U.S.
83. (Supp. Memo. Pet., May 12, 2021, Docket No. 34.) The State asserted that Smith did
not adequately raise a Brady claim in state court and therefore the issue was not
preserved for review at the federal level. (Resp. Mem. at 1, June 25, 2021, Docket No.
41.) The Magistrate Judge determined that Smith did present his Brady claim to the
Minnesota Supreme Court, and that the record was insufficient to support a decision on
the merits of the Petition. (Mag. Judge’s Order, at 12–14, Sept. 17, 2021, Docket No. 42.)
The Magistrate Judge ordered the parties to submit further documents, evidence, and
supplemental briefing. (Id. at 14.) Pursuant to Local Rule 72.2, the State objected to the
Order, arguing that the Magistrate Judge erred by: (1) concluding that Smith had fairly
presented a Brady claim to state court; (2) ignoring the Minnesota Supreme Court’s
determination that Smith failed to show he was prejudiced by the late disclosure of the
evidence; and (3) requiring disclosure of the written transcripts and digital recordings of
the jail calls in violation of Pinholster. (Resp’t Obj., Oct. 1, 2021, Docket No. 43).
DISCUSSION
I.

STANDARD OF REVIEW
The standard of review on an objection to a magistrate judge’s order depends on

whether that order is dispositive.

The district court reviews a magistrate judge’s

dispositive decisions de novo, while it reviews non-dispositive rulings for clear error. See
Fed. R. Civ. P. 72. In determining whether a ruling is dispositive, Rule 72 “permits the
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courts to reach commonsense decisions rather than becoming mired in a game of labels.”
E.E.O.C. v. Schwan's Home Serv., 707 F. Supp. 2d 980, 988 (D. Minn. 2010) (quoting Charles
A. Wright, Arthur Miller, & Richard L. Marcus, Federal Practice and Procedure: Civil 2d §
3068, at 338 (1997)). “Courts typically consider ‘the impact on the merits of the case in
deciding whether [the motion] should be characterized as dispositive.’” Id. (quoting
Wright & Miller § 3068, at 345). An order that resolves a claim, defense, or action is
dispositive and subject to de novo review. Id. (quoting Wright & Miller § 3068, at 321–
22).
Here, the Magistrate Judge found that Smith had presented a Brady claim to the
state court. (Mag. Judge Order, at 12). But the Magistrate Judge did not make a
recommendation on the Petition itself, instead he ordered the parties to submit further
evidence, documents, and supplemental briefing. (Mag. Judge Order, at 14.) This order
does not resolve Smith’s claims presented in his Petition.

Any forthcoming final

recommendation will be dispositive and will therefore be reviewed de novo. In contrast,
the Magistrate Judge’s current order only requires the parties to submit documents,
evidence, and supplemental briefing and, therefore, the order is not dispositive, and the
Court reviews for clear error.
II.

ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this

Court's review of the Petition. Habeas review is "limited to deciding whether a conviction
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violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502
U.S. 62, 68 (1991); see also 28 U.S.C. § 2254(a) ("[A] district court shall entertain an
application for a writ of habeas corpus . . . only on the ground that [the petitioner] is in
custody in violation of the Constitution or laws or treaties of the United States.") On
habeas review, a federal court should not "reexamine state-court determinations on
state-law questions." Estelle, 502 U.S. at 68.
In particular, Smith’s claim is reviewed under 28 U.S.C. § 2254, which states:
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).
“A state court decision is ‘contrary to’ clearly established federal law if it reaches a
conclusion opposite that of the Supreme Court on a question of law, or reaches a decision
contrary to the Supreme Court on materially indistinguishable facts.” Arnold v. Dormire,
675 F.3d 1082, 1085 (8th Cir. 2012).
Before bringing a federal claim for relief under § 2254, a petitioner must exhaust
that claim before the state courts. Murphy v. King, 652 F.3d 845, 848 (8th Cir. 2011)
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(citation omitted); see also 28 U.S.C. § 2254(b)(1). A claim is not exhausted unless it was
fairly presented in one complete round of a state's appellate review process. Beaulieu v.
Minnesota, 583 F.3d 570, 575 (8th Cir. 2009). To fairly present a claim, the petitioner must
present both the factual and legal premises of the claim to the state court. Dansby v.
Hobbs, 766 F.3d 809, 823 (8th Cir. 2014).
A petitioner’s claim will generally be procedurally defaulted if the petitioner does
not present it in state court. Barrett v. Acevedo, 169 F.3d 1155, 1161 (8th Cir. 1999). Once
defaulted, federal habeas review "is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The constitutional claim at issue here is whether Smith’s due process rights were
violated under Brady. Brady held that the prosecution's failure to disclose evidence that
is both favorable to the accused and material either to the accused's guilt or punishment
violates due process. 373 U.S. at 87; see also United States v. Kime, 99 F.3d 870, 882 (8th
Cir. 1996). Thus, for Smith to properly pursue the Petition, he must demonstrate that he
fairly presented the Brady violation to a state court.
A.

Exhaustion of State Court Remedies

The Magistrate Judge determined, and the parties agree, that Smith presented the
factual basis for his Brady claim by informing the Minnesota Supreme Court of the burden
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placed upon Smith’s attorney when the prosecutors failed to turn over the call recordings
in a timely manner. (Mag. Judge’s Order, at 8; Resp’t Obj., at 5.) The Magistrate Judge
also concluded that Smith adequately presented the legal premises of his Brady claim to
the state court. (Mag. Judge’s Order, at 9.) The State asserts that conclusion was in error.
(Resp’t Obj., at 6.)
The Magistrate Judge concluded that petitioner presented the legal premise of his
Brady claim in two ways: (1) by specifically mentioning that he believed the recordings
may contain Brady material that he did not have time to investigate; and (2) by arguing
that the prosecution’s failure to timely disclose the recordings was a violation of
Minnesota Rule of Criminal Procedure 9.01 which incorporates the Brady rule. (Mag.
Judge’s Order, at 9–12.)
The State asserts that merely mentioning Brady is not sufficient to present a Brady
claim. But, as the Magistrate Judge made clear, the Eighth Circuit has found that specific
citation to Brady is not required to present a Brady claim. Odem v. Hopkins, 192 F.3d 772,
776 (8th Cir. 1999). Additionally, petitioners are not required to present a claim for habeas
relief in the exact manner it was presented in state court. Picard v. Connor, 404 U.S. 270,
278 (1971) (holding that the exhaustion requirement does not require the respondent to
have cited “book and verse on the federal constitution” in state court). A petitioner has
presented a sufficient legal basis for a Brady claim in state court if it is alleged that the
prosecution failed to adequately turn over exculpatory evidence. Odem, 192 F.3d at 775.
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This is the case even if that allegation was solely presented in support of a non-Brady
claim, such as the fair trial claim here. Id. (holding the petitioner adequately raised a
Brady claim in state court though he brought an action for ineffective assistance of
counsel).
The Magistrate Judge correctly stated the law in the Eighth Circuit. He then
correctly concluded that Smith’s direct mention of Brady and argument that his defense
was impaired by the prosecution’s late disclosure of the jail call recordings was sufficient
to present a Brady claim under Eighth Circuit law. As such, the Magistrate Judge did not
clearly err in finding that petitioner presented the legal premise of a Brady claim.
B.

Merits of the Brady Claim

Once a determination has been made that the state court remedies have been
exhausted, the next step is to determine whether the state court made a decision on the
merits. 28 U.S.C. § 2254(d). If a claim was adjudicated on the merits, the habeas petition
cannot be granted unless the adjudication of the claim: (1) was contrary to or involved an
unreasonable application of federal law; or (2) was based on an unreasonable
determination of the facts. Id.
The Magistrate Judge found that the Minnesota Supreme Court reached the merits
of the petitioner’s Brady claim but determined that the required analysis under § 2554(d)
could not be completed on the record currently before the Court. The Magistrate Judge,
therefore, requested that the parties supplement the record before proceeding.
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Nonetheless, the State asserts that the Magistrate Judge erred by “ignoring” the
Minnesota Supreme Court’s holding that Smith failed to establish that the recordings
were admissible at trial and that this ruling from the Minnesota Supreme Court is entitled
deference. The State’s objection is premature as the Magistrate Judge has yet to reach
the merits of the Petition, which likely will involve a review of the ruling from the
Minnesota Supreme Court and whether it is entitled to deference. Therefore, the Court
cannot find, at this time, that the Magistrate Judge was in clear error by not addressing
whether Smith was prejudiced by the late disclosure of calls. Upon supplementation of
the record, the Magistrate Judge will consider this issue and the parties can properly raise
their arguments on the issue at that time.
C.

Constitutionality of Order to Supplement Record Under Cullen v.
Pinholster

In Cullen v. Pinholster the United States’ Supreme Court held that “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” 563 U.S. 170, 181 (2011). The State argues, that the Magistrate
Judge’s order to supplement the record with a digital recording and a written transcript
of the full phone recordings violates the Pinholster rule.
The Pinholster Court found § 2254(d)(1)’s “backward-looking language requires an
examination of the state-court decision at the time it was made.” Id. at 182. The Supreme
Court held that it would be contrary to the deference due to state court decisions to
“allow a petitioner to overcome an adverse state-court decision with new evidence
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introduced in a federal habeas court and reviewed by that court in the first instance
effectively de novo.” Id.
Smith contends that Pinholster does not apply in this circumstance. The Pinholster
Court noted that a diligent defendant who is prevented from admitting evidence to the
record due to a Brady violation may not be prevented from supplementing the record in
their federal habeas proceeding. Id. at 186 n.10.; Id. at 212, 213 n.5 (Sotomayor, J.,
dissenting in part).
Smith contends, and the Court agrees, that the Magistrate Judge’s Order is
constitutional because Smith was denied the opportunity to enter the telephone
recordings into the record because he could not review the all the calls due to the trial
court denying his motion to continue the trial. Smith points to two Fifth Circuit cases to
support this argument—Smith v. Cain and Blue v. Thaler.
In Smith v. Cain, the district court found that the underlying state court
adjudication on the merits was contrary to federal law, and ordered an evidentiary
hearing to remedy that wrong. 708 F.3d 628, 634 (5th Cir. 2013). In Blue v. Thaler, the
Fifth Circuit reasoned that a district court can supplement the record if the state court
dismissed an Atkins claim without giving the petitioner an opportunity to develop their
claims, because the state court has “run afoul of the Due Process Clause, and the due
process violation constitutes an unreasonable application of clearly established federal
law.” 665 F.3d 647, 656 (5th Cir. 2011) (finding that the state court had not acted contrary
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to federal law so there was no reason to supplement the record). Here, the Smith did not
bring a motion for violation of his Brady rights before the state trial court, but by denying
Smith’s motion to continue the trial the State Court may have effectively circumscribed
Smith’s ability to bring a Brady motion and vindicate his constitutional rights. Therefore,
the Magistrate Judge’s order does not violate the Pinholster rule, but the Pinholster case
does suggest moving forward with caution.
CONCLUSION
The Magistrate Judge did not err by ordering the parties to present further
documents and briefing on whether the Minnesota Supreme Court’s findings on the
merits of Smith’s Brady claim was consistent with clearly established federal law.
Moreover, the Pinholster rule does not prevent the Court from ordering the parties to
supplement the record with the full jail calls in light of the circumstances here. Therefore,
the Court will overrule the State’s objections and affirm the Magistrate Judge’s order.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that the State’s Objection [Docket No. 43] is set aside, the Magistrate
Judge’s Order [Docket No. 42] is AFFIRMED.

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DATED: August 2, 2022
at Minneapolis, Minnesota.

____

___
JOHN R. TUNHEIM
United States District Judge

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