Opinion
Civil No. 03-3337 (JRT/JGL).
August 31, 2004
True Thao, MN Correctional Facility, Moose Lake, MN, petitioner pro se.
Philip C. Carruthers, Assistant County Attorney, OFFICE OF THE RAMSEY COUNTY ATTORNEY, St. Paul, MN, for respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Petitioner True Thao filed an application for Writ of Habeas Corpus. In a Report and Recommendation dated February 17, 2004, United States Magistrate Judge Jonathan Lebedoff recommended that petitioner's application be denied. Petitioner objected. The Court has conducted a de novo review of petitioner's objections pursuant to 28 U.S.C. § 636(b)(1)(c) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and denies petitioner's § 2254 petition.
BACKGROUND
On May 3, 2000, petitioner Thao was charged with seven felonies arising from a gang-related shooting, including attempted first degree intentional murder by drive-by shooting in violation of Minn. Stat. §§ 609.185(a)(3), 609.17, subd. 1 (1998). On March 25, 2002, a jury found Thao guilty of all seven counts. The Minnesota Court of Appeals affirmed the conviction on January 2, 2002, and the Minnesota Supreme Court subsequently denied Thao's Petition for Review. Thao is currently serving a 186-month sentence at the Minnesota Correctional Facility in Moose Lake, Minnesota.Thao filed a Petition for Writ of Habeas Corpus in this court on June 5, 2003. Thao asserts that he was convicted of attempted felony murder. Petitioner points out that criminal liability for an attempted crime requires specific intent, while felony murder is unintentional homicide committed during the course of a felony and has no specific intent requirement. Thao argues that, because of the differing intent requirements, attempted felony murder cannot be a crime under Minnesota law, and his conviction must be overturned.
The Magistrate Judge determined that petitioner has exhausted his state remedies, and has properly filed this federal habeas corpus petition under 28 U.S.C. § 2254. However, the Magistrate Judge determined that petitioner's claim did not merit relief and therefore recommended dismissing the petition. Petitioner objects to the Magistrate Judge's conclusion that petitioner was properly convicted of an existing crime.
ANALYSIS
I. STANDARD OF REVIEWA writ of habeas corpus is available to "a person in custody pursuant to the judgment of a State court" if that person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). An application for habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless adjudication of the claim "resulted in a decision that was contrary to law, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court's decision is contrary to clearly established Supreme Court precedent "`if it applied a rule that contradicts the governing law set forth in our cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'" Mitchell v. Esparza, 124 S. Ct. 7, 10 (2003) ( quoting Williams v. Taylor, 529 U.S. 362 (2000)).
A habeas petition may also be granted if the state court adjudication "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)(2). Thao does not challenge the factual determinations of the State court, and the Court therefore does not address this basis for relief.
II. PETITIONER'S CONVICTION FOR ATTEMPTED FIRST DEGREE INTENTIONAL MURDER
Petitioner contends that he was convicted of, and is currently incarcerated for, having committed a crime that does not exist. It cannot be questioned that the United States Constitution prohibits conviction for activity that does not constitute a crime. See United States v. Gaudin, 515 U.S. 506, 509-10 (1995) (Fifth and Sixth Amendments "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt"); Francis v. Franklin, 471 U.S. 307, 313 (1985) (Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged); Jackson v. Virginia, 443 U.S. 307, 313-14 (1979) ("It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. . . . [A] person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.").
Thao did not cite the United States Constitution or federal law in presenting his claim to the State courts. However, Thao's argument to the State courts that he had been convicted of the nonexistent crime of attempted felony murder, which also forms the basis of this habeas corpus petition, fairly presents a claim that a conviction for attempted felony murder violates Thao's constitutionally protected right to not be convicted of or punished for a nonexistent crime. See Anderson v. Harless, 459 U.S. 4, 6 (1982) ("[T]he habeas petitioner must have fairly presented to the state courts the substance of his federal habeas corpus claim.") (internal citations and quotations omitted).
Thao cites State v. Lea, 485 S.E.2d 874, 880-81 (N.C.Ct.App. 1997), in support of his proposition that the crime of attempted felony murder does not exist. The court in Lea addressed a statute that codified the traditional felony murder doctrine. The traditional felony murder doctrine, and the statute at issue in Lea, "does not require that the defendant intend the killing, only that he or she intend to commit the underlying felony." Lea, 485 S.E.2d at 880. "To convict a defendant of criminal attempt, on the other hand, requires proof that the defendant specifically intended to commit the crime that he is charged with attempting." Id. at 880. Thus, in Lea, a conviction of attempted felony murder "would [have] required the defendant to intend what is by definition an unintentional result." Id. The court observed that "almost every court, [including Minnesota,] addressing this issue has agreed that the crime of attempted felony murder cannot exist." Id. ( citing State v. Dahlstrom, 150 N.W.2d 53 (Minn. 1967)) (additional citations omitted).
Petitioner's reliance on Lea is misplaced. Thao confuses attempted first degree felony murder, which requires a finding of intent to kill, with attempted second degree felony murder, which has no intent requirement.
Minnesota has codified the traditional felony murder doctrine in its second degree felony murder statute, Minnesota Statute § 609.19 subd. 2(2). In Minnesota, a person is guilty of second degree felony murder if that person "causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense." Minn. Stat. § 609.19, subd. 2(2) (emphasis added). Under Minnesota Statute § 609.17, the crime of attempt is defined as follows:
Subdivision 1. Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime, and may be punished as provided in subdivision 4.
For the same reasons expressed by the court in Lea, Minnesota courts have rejected the crime of attempted second degree felony murder. See, e.g., Dahlstrom, 150 N.W.2d at 58-59 (stating that felonious conduct cannot constitute attempted murder where the actor does not intend the death of anyone and where no death occurred). Thus, if Thao had been convicted under the second degree felony murder statute, his conviction for attempted felony murder would be invalid.
Thao, however, was convicted under Minnesota's first degree felony murder statute, Minnesota Statute § 609.185(a)(3). Unlike the traditional felony murder doctrine and Minnesota's second degree felony murder statute, § 609.185(a)(3) specifically requires a finding of intent to kill. Minnesota Statute § 609.185(a)(3) provides in relevant part:
(a) Whoever does any of the following is guilty of murder in the first-degree and shall be sentenced to imprisonment for life:
. . .
(3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit . . . a drive-by shooting. . . ."
(Emphasis added.)
As both the statute under which Thao was convicted and the attempt statute require a finding of intent, there is no inconsistency between the two. Thao was therefore properly convicted of attempted first degree felony murder. See State v. Williams, 373 N.W.2d 851, 853 (Minn.App. 1985) (noting that the Minnesota legislature revised the traditional felony murder statute to require "intent to effect . . . death," and stating "[w]e have no doubt that [a defendant] could [be] convicted of attempted first-degree [felony] murder"). The Court thus finds no support for Thao's contention that the state court proceedings were contrary to established law or involved an unreasonable application of Federal law.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES petitioner's objection [Docket No. 15] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 10]. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's Petition for Writ of Habeas Corpus [Docket No. 1] is DISMISSED WITH PREJUDICE.
2. For purposes of appeal, the Court does not certify the issues raised in petitioner's motion as petitioner has not made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), as required under the appeal statute for the issuance of a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A).
The Clerk of Court is respectfully directed to mail a copy of this Order to the petitioner.