Opinion
Civil File No. 05-2089 (RHK/RLE).
October 13, 2005
Tibor M. Gallo, Attorney for Respondent, Mike Hatch, Attorney General, State of Minnesota, St. Paul, Minnesota.
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
The instant petition for writ of habeas corpus nominally lists four grounds for relief, although petitioner appears to have intermingled several other issues in his arguments. The four grounds are: (1) the trial court erred by sentencing petitioner through "cause and prejudicial violations," raising a Blakely issue and Apprendi violation; (2) petitioner was deprived of his Sixth Amendment right to hire counsel of choice, allowing petitioner to be sentenced notwithstanding attorney-client conflicts and prosecutorial misconduct; (3) petitioner received ineffective assistance of counsel, depriving him of diminished capacity defense and presentence investigation interview; and (4) trial court denied petitioner a hearing on newly discovered evidence and the ability to call witnesses to testify in his favor. Except for the sentencing issue, the foregoing claims or closely related claims were raised in the Minnesota Supreme Court and rejected on the merits. Petitioner's request for habeas corpus relief is time-barred by the statute of limitations. 28 U.S.C. § 2244(d). Some of petitioner's claims were arguably adequately raised as federal claims in the Supreme Court. However, petitioner failed to alert the Minnesota Supreme Court of the federal nature of his sentencing arguments on the direct appeal of his conviction, and those claims were procedurally barred from review in petitioner's two appeals to the Supreme Court of district court denials of postconviction relief. The combination of the unexhausted Blakely and Apprendi claims and the arguably exhausted claims presents this Court with a "mixed petition" that must be dismissed. Accordingly, this petition must be dismissed with prejudice.
STATEMENT OF TRANSCRIPTS
The following transcripts are available, and can be provided within a few days of a request:
Trial transcript contains 2,523 pages.
STATEMENT OF THE CASE
Petitioner Vernon Neal Powers and his codefendants Scot Christian and David Christian were indicted on various counts of first- and second-degree murder, for robbery and the murder of Juan Ramirez and Raul Gutierrez. Following an approximately three-week trial in state district court, the Honorable Donald E. Rysavy presiding, the jury found petitioner and Scot Christian guilty of two counts of premeditated first-degree murder, in violation of Minn. Stat. § 609.185(1) (2000), two counts of first-degree felony murder, in violation of Minn. Stat. § 609.185(3) (2000), two counts of second-degree intentional murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (2000), two counts of second-degree felony murder, in violation of Minn. Stat. § 609.19, subd. 2(1) (2000), first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (2000), and felon in possession of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). The jury found David Christian not guilty of two counts of first-degree felony murder, not guilty of two counts of second-degree intentional murder, but guilty of two counts of second-degree felony murder, and guilty of first-degree assault. Judge Rysavy sentenced petitioner and Scot Christian to two consecutive life prison terms for the premeditated murder convictions, and to one consecutive 86-month prison term for the assault conviction.On direct appeal, the Minnesota Supreme Court affirmed petitioner's convictions, holding that
The district court did not err in granting the state's motion for joinder for trial of petitioner with codefendants . . ., nor did the court err by not severing the case midtrial.
The district court did not abuse its discretion when conducting a Schwartz hearing into improper contact between a juror and a prosecutor.
The prosecutor made improper comments during closing argument, but those comments did not rise to the level of prosecutorial misconduct.
The district court erred by holding several hearings during the course of the trial without the petitioner present, but the error was harmless beyond a reasonable doubt.
Petitioner's claim that he received ineffective assistance of counsel is without merit; his Sixth Amendment rights were not violated.
Petitioner's right to an impartial jury and adequate voir dire was not violated by the requirement that he select the jury with codefendants.State v. Powers ( Powers I), 654 N.W.2d 667, 671 (Minn. Jan. 2, 2003). There was no petition to the U.S. Supreme Court.
On December 16, 2003, petitioner filed a petition for postconviction relief, claiming: (1) his sentence "violates the rule of Apprendi v. New Jersey;" (2) his convictions were improperly based upon uncorroborated testimony of an accomplice; (3) it was plain error for the trial court to fail to instruct the jury on the elements of first-degree robbery; (4) "[t]he refusal of the trial court to sever [his] trial effectively denied his right to a fair trial;" (5) the trial court's denial of his motion to hire a private attorney effectively denied his right to effective assistance of counsel; and (6) he was improperly denied effective assistance of counsel. Petitioner's petition was denied without a hearing by Judge Rysavy, who presided over his trial. See Powers v. State, 688 N.W.2d 559, 560 (Minn. 2004). Petitioner then filed an appeal from the denial of postconviction relief, abandoning most of his claims and arguing only that he was improperly sentenced and that the postconviction court should have held a hearing on whether he was prejudiced by joinder. Id.
The second Powers opinion ( Powers II, the first appeal of a postconviction proceeding) is dated October 14, 2004; on the November 19, 2004, rehearing, the Court amended the opinion by deleting a footnote.
The Minnesota Supreme Court affirmed the denial of postconviction relief, holding that the postconviction court did not abuse its discretion in summarily denying the petition because all of petitioner's arguments were raised on a direct appeal or were known at the time of that appeal. Id. at 561. The court held that petitioner's arguments did not fall within the exceptions to the general rule that, after direct appeal, any matters raised or known at the time would not be considered in subsequent postconviction proceedings. Id. at 561.
On October 26, 2004, petitioner then filed a second petition for postconviction relief, in which he claimed that there were errors in the jury instructions that he should only have been convicted of second-degree unintentional murder, that his indictment was deficient, and that his sentence was unconstitutional. Petitioner's petition was denied without a hearing by Judge Rysavy. Powers v. State ( Powers III), 695 N.W.2d 371, 372 (Minn. May 5, 2005). Petitioner again appealed from the denial of postconviction relief. Id.
On his second postconviction proceeding appeal, petitioner claimed that (1) the criminal jury instruction guides were unconstitutional because they relieved the state of the burden of proving intent; (2) the district court unconstitutionally directed a verdict when the first-degree premeditated murder conviction and second-degree unintentional murder conviction were incompatible offenses; (3) the indictment was insufficient, and (4) his sentence was unconstitutional because the indictment did not refer to the subdivision of the section under which he was charged. Id. at 374. The Supreme Court rejected his arguments, holding that all four claims were barred because they were known or knowable at the time of Powers' direct appeal. Id. at 374-75. As in petitioner's earlier appeal, his claims were barred based on longstanding precedent of State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). There was no petition for writ of certiorari to the United States Supreme Court from either of the two Supreme Court decisions affirming the dismissal of petitioner's request for postconviction relief.
Petitioner filed his Petition for Writ of Habeas Corpus by a Person in State Custody on September 9, 2005.
STATEMENT OF THE FACTS
The facts are thoroughly set out in the Minnesota Supreme Court's decision on petitioner's direct appeal, and will not be repeated here. See Powers I, 654 N.W.2d at 672-75. In summary: an accomplice and one of the surviving victims identified petitioner as one of the two gunmen who shot to death Juan Ramirez and Raul Gutierrez; testimony from other witnesses put petitioner in the room with a gun when the murders occurred; and DNA testing of a mask and a shoe found in the room yielded a predominant profile that matched that of petitioner.
ARGUMENT
I. POWERS' CLAIMS MUST BE DISMISSED BECAUSE HE FAILED TO FILE HIS PETITION WITH THIS COURT WITHIN THE ONE-YEAR STATUTE OF LIMITATIONS.
The federal habeas statute, at 28 U.S.C. § 2244(d), places a one-year limitation on a petitioner's opportunity to seek federal habeas relief. The statute provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
The running of the statute of limitations is triggered by the conclusion of all direct criminal appeals in the state system and the completion or denial of certiorari proceedings before the United States Supreme Court, or if certiorari was not sought, the expiration of the time allotted to filing the petition for the writ, which is 90 days after the conclusion of the state direct criminal appeal. Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir. 2001), citing Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S. 1187 (1999). Petitioner's direct appeal was concluded on January 2, 2003. Powers I, 654 N.W.2d 667. The one-year limit for a habeas petition began to run on April 2, 2003, 90 days after the decision by the Minnesota Supreme Court. On December 16, 2003, petitioner filed his first state court action for postconviction relief. Powers II, 688 N.W.2d at 560. That period of 258 days is counted as part of the one-year limitation period. Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001).
Petitioner's first postconviction relief proceeding ended with the Minnesota Supreme Court's decision in Powers II on November 19, 2004. 688 N.W.2d 559. Powers did not petition for a writ of certiorari. By the time Powers II was decided, however, petitioner filed a second postconviction petition pro se on October 26, 2004. Powers III, 695 N.W.2d at 372. The Minnesota court rejected his claims in its decision dated May 5, 2005. Id. Powers did not petition for a writ of certiorari.
Petitioner's next move was to file his petition for writ of habeas corpus with this Court on September 9, 2005. There is no tolling of the statute of limitations for an additional 90 days during which certiorari could be sought after a state prisoner receives his final disposition in state court on postconviction proceedings. Snow, 238 F.3d at 1035. Therefore, the 120 days between the Minnesota court's Powers III decision and petitioner's application for writ of habeas corpus filed in this Court are not tolled and are counted toward the one-year statutory limitation.
The 258-day initial running of the statute and the 120-day addition after the Minnesota court decision totals 378 days, which exceeds the one-year statute of limitations in § 2244(D)1. Accordingly, Powers' petition is time-barred and should be dismissed with prejudice.
II. POWERS' PETITION MUST BE DISMISSED BECAUSE IT IS A MIXED PETITION.
A state prisoner must exhaust his state remedies before habeas relief can be considered in federal court. Under the total exhaustion rule, district courts are required to dismiss "mixed petitions," containing both exhausted and unexhausted claims. Because petitioner's Blakely claim was procedurally defaulted when the Minnesota Supreme Court refused to rule on the merits, it cannot be considered by this Court. Accordingly, that unexhausted claim cannot be considered in a mixed petition with an exhausted claim, so the petition must be dismissed.
As a general rule, federal habeas relief is not available to a state prisoner unless he has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A). "A claim is considered exhausted when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim." Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993) (citations omitted). To provide state courts a fair opportunity to rule on a claim cognizable under 28 U.S.C. § 2254, the petitioner must refer the court "`to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.'" Cox v. Burger, 398 F.3d 1025, 1031 (8th Cir. 2005) (quotation omitted). The petitioner must squarely present his federal claims to the state's highest court in order to preserve those claims for federal habeas review. Baldwin v. Reese, 541 U.S. 27, 30, 32, 124 S. Ct. 1347, 1350-51 (2004).
In his petition for writ of habeas corpus to this Court, petitioner's first issue concerns sentencing, wherein he alleges that his sentence is in violation of Blakely and Apprendi. In petitioner's direct appeal of his conviction to the Minnesota Supreme Court, he did not raise Blakely or Apprendi; indeed, he raised no sentencing issue at all. Powers I, 654 N.W.2d at 672. In the appeal of his first state postconviction proceeding, he squarely raised the Apprendi issue. Powers II, 688 N.W.2d at 561. In the appeal of his second state postconviction proceeding, petitioner claimed that he was unconstitutionally sentenced, but on grounds not clearly related to Apprendi or Blakely. Powers III, 695 N.W.2d at 374. The problem for petitioner is that, on the two Minnesota Supreme Court appeals in which he challenged the constitutionality of his sentencing, the Supreme Court held that his claim was procedurally barred because it could have been raised on the direct appeal of his conviction. Powers II and III, Id. The Minnesota court based its decision on its longstanding precedent in State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). The court held that the two exceptions to the general Knaffla rule were inapplicable to Powers in both appeals. 688 N.W.2d at 561; 695 N.W.2d at 374.
Blakely v. Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000).
When a state appellate court has expressly declined to address a particular claim on the merits because the claim was not raised in accordance with applicable state procedural rules, the claim is considered to be "procedurally defaulted" for federal habeas corpus purposes. Hall v. Delo, 401 F.3d 1248, 1250 (8th Cir. 1994). A federal claim has not been fairly presented to the state court and is, therefore, procedurally defaulted "when the state court has declined to decide the federal claim on the merits because the petitioner violated a state procedural rule." Id. The Minnesota Supreme Court's application of Knaffla is an "adequate and independent" state-law basis for default. Murray v. Hvass, 269 F.3d 896, 899-900 (8th Cir. 2001); McCall v. Benson, 114 F.3d 754, 757-58 (8th Cir. 1997).
A claim that has been procedurally defaulted will not be entertained in a federal habeas corpus proceeding. Because petitioner's Blakely claim was not addressed on the merits by the Minnesota Supreme Court — the issue not being properly before the Court — the claim has not been fairly presented and has been procedurally defaulted. This Court should therefore not consider petitioner's Blakely claim.
In addition, federal habeas corpus petitioners are not entitled to apply a new rule of law to their cases if the rule was announced after the petitioner's state appeal. Teague v. Lane, 489 U.S. 288, 301 (1989). Blakely was decided on June 24, 2004, and petitioner's direct appeal to the Minnesota Supreme Court was decided on January 2, 2003. Under Teague, Blakely cannot be applied to petitioner.
Finally, Powers' petition should be dismissed because it is a "mixed petition." In Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198 (1982), the Supreme Court addressed the exhaustion requirements for habeas corpus petitions. The Court adopted a "total exhaustion rule," requiring district courts to dismiss "mixed petitions" ( i.e., petitions that contain both exhausted and unexhausted claims). Rose, 455 U.S. at 510, 522, 102 S. Ct. 1198. After the district court dismisses a mixed petition, the petitioner can return to state court to exhaust his claims or file an amended petition in federal court including only exhausted claims. Id. at 510, 102 S. Ct. at 1198. In Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003), the Eighth Circuit Court of Appeals followed this rule, allowing the plaintiff to file an amended petition containing only exhausted claims.
On his direct appeal to the Minnesota Supreme Court from his conviction, petitioner argued that he received ineffective assistance of counsel, on the grounds that his trial counsel implied his guilt without his consent and that his representation was so deficient as to deny him the right to adequate counsel. Powers I, 654 N.W.2d at 681. The court rejected both of his claims on the merits, citing the benchmark Strickland v. Washington, 466 U.S. 668 (1984). Id. at 681-82. Accordingly, petitioner squarely presented his federal constitutional claim of ineffective assistance of counsel to the Minnesota court.
In his current petition to this Court, petitioner again makes a Sixth Amendment claim of deficient performance by his trial counsel, although some of the present details of the claim differ from the argument made to the state court. Par. D, ground 3, Petition for Writ of Habeas Corpus, filed September 9, 2005 (court form). On pages 28 to 37 of Petitioner's Consolidated Affidavit and Memorandum of Law in Support of Petition for Writ of Habeas Corpus, etc., filed September 9, 2005, petitioner sets forth in detail his allegations that his trial counsel's performance was deficient. A generous reading of the state court's decision and the current petition indicates that petitioner presented his federal claim of ineffective assistance of counsel to the state's highest court, thereby preserving that issue for federal habeas review. But because his petition also contains an unexhausted claim, the Blakely issue, he has presented this Court with a mixed petition. Pursuant to Rose and Kozohorsky, this Court must therefore dismiss the petition because it contains a mixture of exhausted and unexhausted claims.