Opinion
Civil No. 03-3631 ADM/JSM.
July 29, 2004
John Michael Copeland, pro se.
Linda K. Jenny, Assistant Hennepin County Attorney, on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Court Judge pursuant to Petitioner John Michael Copeland's ("Petitioner") Objections [Docket No. 7] to the May 17, 2004 Report and Recommendation ("RR") of Magistrate Judge Janie S. Mayeron [Docket No. 6]. The RR recommends that Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Habeas Petition") [Docket No. 1] be dismissed without prejudice, unless Petitioner files within fourteen (14) days from the date of this Court's Order, an Amended Habeas Petition to state only Grounds One through Three and the first sentence of Ground Four, of the instant Habeas Petition.
The factual background for this matter is set forth in the RR and is incorporated by reference herein for the purposes of Petitioner's present objections. For the reasons set forth below, the Objections are denied as moot and the RR is adopted as modified below.
II. DISCUSSION
A district court shall make an independent de novo evaluation of those portions of the RR to which objection is made and 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); D. Minn. LR 72.1(c)(2).The RR concluded the Court lacks jurisdiction to review the instant Habeas Petition because Petitioner presents both exhausted and unexhausted claims. Judge Mayeron found the jury instruction claim, the second part of Ground Four, was not raised in the Petitioner's appeal to the Minnesota Supreme Court. In his Objections, Petitioner argues that he has fully exhausted his state court remedies by appealing all his claims to the Minnesota Court of Appeals and the Minnesota Supreme Court. Therefore, he contends that Judge Mayeron's RR wrongfully recommended his right to federal habeas review be denied. The crux of Petitioner's objection is that his Petition for Review of the Minnesota Court of Appeals' decision ("Petition for Review") raised all his current issues and therefore, once the Minnesota Supreme Court denied the Petition for Review, he became eligible for federal habeas relief. Specifically, Petitioner claims that the jury instruction portion of his fourth ground for relief was included in his appeal to the Minnesota Supreme Court. However, as discussed below, this objection is moot because this claim would be procedurally barred at the state court level in a post-conviction petition and therefore is treated as exhausted.
It is uncontested that Grounds One, Two and Three were fairly presented to the highest state court. The disputed claim, Ground Four, alleges that Petitioner's due process rights were violated based on the following supporting facts:
Trial court violated appellent's rights when they denied counsel['s] motion for the new admended charges to the indictment which was more severe in itself. Additionally appellents due process rights were violated and denied by the trial court and the stated of Minnesota through an alleged approved jury instruction of CR[I]M. JIG. 3.04 with out giving the entire full approved instruction.
Habeas Petition ¶ 12(D) (spelling errors in original).
A Writ of Habeas Corpus may only be granted by a federal district court to review state court decisions in a limited class of claims which have been fully exhausted in the state court system, and which involve an adjudication that either:
(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 prisoner must normally exhaust all available state judicial remedies before a federal court will entertain a petition for habeas corpus. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Rose v. Lundy, 455 U.S. 509, 520 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). The state courts must have the first opportunity to hear the claim and "`pass upon and correct' alleged violations of its prisoners' federal rights." Picard, 404 U.S. at 275 (quotingWilwording v. Swenson, 404 U.S. 249, 250 (1971)). The exhaustion requirement is not satisfied unless the habeas petitioner has raised all of his claims at every available level of the state court appeal process. O'Sullivan, 526 U.S. at 845;see also Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993). Once the petitioner has done this, a federal court may consider his habeas corpus petition. Picard, 404 U.S. at 275.
The federal habeas applicant must have presented the state courts with "the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Id. Thus, in order to fairly present a federal claim before a state court, a habeas applicant must 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." Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988) (internal citations omitted). If the Petitioner presents a "mixed petition," i.e., one that includes both exhausted and unexhausted claims, the district court must dismiss the claim without prejudice. Rose, 455 U.S. at 522; Victor v. Hopkins, 90 F.3d 276, 280 (8th Cir. 1996); Martin v. Solem, 801 F.2d 324, 330-31 (8th Cir. 1986). Under Eighth Circuit precedent however, this disposition is improper where the petitioner has defaulted in the state courts on the unexhausted claim. Akins v. Kenney, 341 F.3d 681, 686-87 (8th Cir. 2003) (concluding that dismissal of a mixed petition for failure to exhaust state remedies "is not appropriate as to claims for which [petitioner] has no currently `available procedure' under state law to raise the issues").
Thus, if a petitioner's unexhausted claims are procedurally barred under state law, the exhaustion requirement is satisfied because "this requirement . . . refers only to remedies still available at the time of the federal petition." Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (internal citations omitted). Since the procedural bar provides "an independent and adequate state-law ground for the conviction and sentence," only a showing of "cause and prejudice" for the default can entitle a petitioner to federal habeas review of such claims. Gray, 518 U.S. at 162; Akins, 341 F.3d at 687. A demonstration by a petitioner that a fundamental miscarriage of justice will occur if his federal claims are not heard is also sufficient to overcome exhaustion by procedural default. Coleman v. Thompson, 501 U.S. 722, 750 (1991) (internal citations omitted); Wemark v. Iowa, 322 F.3d 1018, 1022; Lundquist v. State, No. CIV. 01-293, 2001 WL 31520742, at * 2 (D. Minn. Nov. 11, 2002) (unpublished opinion).
In his Habeas Petition, Petitioner alleges four grounds for review by this Court: 1) that the state district court abused its discretion by admitting evidence of Petitioner's prior assaultive conduct to a person other than the victim; 2) that the state district court abused its discretion by imposing an upward departure from the presumptive 98-month sentence; 3) that alleged prosecutorial misconduct violated the Petitioner's 14th Amendment rights; and 4) that Petitioner's due process rights were violated when Petitioner's motion regarding amended charges to the indictment was denied and when an alleged improper jury instruction was given. Habeas Pet. at 5-6.
Petitioner raised Grounds One, Two, and Three to the Minnesota Court of Appeals and to the Minnesota Supreme Court. Resp't's Mem. at 3-4; see State v. Copeland, 656 N.W.2d 599, 604 (Minn.Ct.App. 2003), rev. denied (April 29, 2003). The RR concluded that Petitioner's fourth claim had not been completely exhausted in the state court system. The record reveals that Petitioner did not specifically raise the jury instruction portion of Ground Four in his appeal to the Minnesota Supreme Court. Pet. for Rev. at 1-2. As such, Petitioner did not provide the state courts with the first opportunity to review the jury instruction claim and the claim is therefore unexhausted.Picard, 404 U.S. at 275-76.
Although the parties agree that the jury instruction allegation was raised at the Court of Appeals, and although a general incorporation reference in the Supreme Court brief was made, there is no explicit mention of this claim in the Petition for Review.
The relevant question then becomes whether the jury instruction claim of Petitioner's Habeas Petition has satisfied the exhaustion requirement because of a procedural bar at the state court level. Under Minnesota state law, when a petitioner has directly appealed a conviction, all claims raised in the appeal and all matters that were known but not raised, "will not be considered upon a subsequent petition for post-conviction relief." Greer v. State, 673 N.W.2d 151, 155 (Minn. 2004) (citing State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976)).
In the instant case, Petitioner argued the instruction issue to the Minnesota Court of Appeals, but failed to expressly raise it in his Petition for Review to the Minnesota Supreme Court. Pet. for Rev. at 2, 10. Once Petitioner raised the defaulted jury instruction claim at the appellate court level, but neglected to raise it in his Petition for Review, it became a "matter that [was] known but not raised." See Greer, 673 N.W.2d at 155 (internal citations omitted). Thus, his failure to present this claim on direct appeal to the Minnesota Supreme Court has effectively barred him from raising it again in a collateral state court action. Id. Accordingly, all of Petitioner's habeas claims are either exhausted or procedurally defaulted pursuant to Minnesota law and the Court will rule on the merits of the Petition. See Greer, 673 N.W.2d at 155.
Regarding Petitioner's properly exhausted claims one and two alleging incorrect evidentiary and sentencing determinations, there is no indication in the Habeas Petition that these claims implicate federal law. See 28 U.S.C. § 2254(a) (applicant must assert a violation of federal statue, Constitution, or treaty). However, even if these issues were not based purely on state law, the Habeas Petition does not allege facts sufficient to establish that the decision of the Minnesota Court of Appeals was unreasonable or contrary to any federal law. See 28 U.S.C §§ 2254(d)(1), (2); Copeland, 656 N.W.2d 599. Petitioner's conclusory statements do not suggest anything close to the egregious violation of due process necessary to reverse a state court's evidentiary ruling. See Mercer v. Armontrout, 844 F.2d 582, 587 (8th Cir. 1988). Similarly, the Habeas Petition contains no facts supporting a finding that the affirmance of Petitioner's sentence violated federal law. Therefore, Petitioner is not entitled to any relief on these grounds.
Petitioner's third exhausted claim alleges a violation of his 14th Amendment due process rights through prosecutorial misconduct. Habeas Pet. ¶ 12(C). However, Petitioner has failed to demonstrate that the state court adjudication was contrary to Petitioner's right to a fair trial under the federal Constitution, as is required to obtain relief. See Warden v. Wainwright, 477 U.S. 168, 181 (1986). In rejecting Petitioner's arguments, the Minnesota Court of Appeals held that the "[Petitioner's] claim of prosecutorial misconduct [was] unfounded" because the evidence was properly admitted to attack a witness's credibility by showing bias under Minn. R. Evid. 616. Copeland, 656 N.W.2d at 604. The Habeas Petition does not provide any factual basis to believe otherwise.
Minnesota Rule of Evidence 616 states in pertinent part: "For the purposes of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible."
With respect to the first part of Ground Four, addressing amendment to the indictment, Petitioner cannot raise a valid habeas claim because he was not convicted of the charge of which he complains. See Copeland, 656 N.W.2d at 605. Regarding Petitioner's defaulted jury instruction claim, Petitioner must demonstrate cause and prejudice or that a fundamental miscarriage of justice will occur if his claim is not heard in this Court.Coleman, 501 U.S. at 750; Wemark, 322 F.3d at 1022. Petitioner has not argued or demonstrated cause for or prejudice in failing to pursue his jury instruction claim in his appeal to the Minnesota Supreme Court. Nor has he made any contention or showing of actual innocence necessary to invoke the fundamental miscarriage of justice exception. See McCall v. Benson, 114 F.3d 754, 758 (1997). Accordingly, Petitioner is not entitled to habeas relief on this claim.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Petitioner's Objections [Docket No. 7] are DENIED as moot,
2. The RR [Docket No. 6] is ADOPTED AS MODIFIED, and
3. Petitioner's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1] is DENIED and DISMISSED WITH PREJUDICE.