Opinion
Civil No. 02-4781 (JRT/RLE).
July 16, 2004
Donald Lilienfeld, OID #116969, Moose Lake, MN, pro se.
David Brown, HENNEPIN COUNTY ATTORNEY'S OFFICE, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Donald Lilienfeld ("Lilienfeld" or "petitioner") brings this action for a writ of habeas corpus, seeking relief from a 216-month sentence for one count of first degree arson and two concurrent sentences of 30 months each for terroristic threats. Petitioner claims that the sentence was imposed in violation of his federally protected rights, asserting claims of evidentiary error; prosecutorial misconduct; ineffective assistance of trial counsel and conflict of interest. In a Report and Recommendation ("RR"), United States Magistrate Judge Raymond L. Erickson recommended that the writ be denied.
In violation of Minn. Stat § 609.651, subd. 3 (1998).
In violation of Minn. Stat. § 609.713, subd. 1 (1998).
Petitioner objects to "all of the issues and conclusions of law in the report and recommendation with the exception of the recommendation to file for Post-Conviction Relief in the state courts on ineffective assistance of appellate counsel to show cause and prejudice." (Objection to RR at 1 [Docket No. 15].) The Court has conducted a de novo review of the petitioner's objection 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, denies the petition for writ of habeas corpus, and dismisses this action.
BACKGROUND
The facts underlying petitioner's conviction have been set forth in some detail by both the Minnesota Court of Appeals, State v. Lilienfeld, 2001 WL 215716 (Minn.Ct.App. Mar. 6, 2001), review denied (Minn. May 15, 2001), and the Magistrate Judge. Therefore the Court adopts by reference the background as set forth in the RR, and provides only a brief summary including procedural facts relevant to the instant petition.
Petitioner was found guilty of intentionally burning down a house ("the house") in south Minneapolis and making terroristic threats to two individuals that he would also burn down their homes. Evidence at trial indicated that a liquid accelerant was used to start the fire. The house had been vacant from March 1997, until the fire in April of 1999. Prior to that, from October 1996 to March 1997, the house was rented to Belinda Jenkins and was occupied by Jenkins and her three children. At some point, the owner determined that petitioner was also living in the home, and was causing damage, and the owner then served Jenkins with an eviction notice.
Some months after serving the 30-day eviction notice, the landlord solicited the assistance of Minneapolis housing inspectors to evict Jenkins. The landlord boarded up the house, but the police were notified that Jenkins and petitioner had broken into the house on at least two occasions. Two neighbors, Roosevelt Owens and Anthony Jarmones, testified at trial that they believed petitioner intended to burn the house down because petitioner complained that the owner had taken petitioner's and Jenkins' money, and then evicted them. Owens and Jarmones testified that petitioner had angrily threatened to burn down the house. Jarmones also testified that sometime between 10:00 p.m. and 11:00 p.m. on the day of the fire, April 17, 1999, he saw petitioner walk away from the side of the house, and petitioner sat on the steps of Jarmones' house. Jarmones testified that petitioner said, "God bless. Who did this to this house? Maybe I did. Maybe I didn't. And if you tell I did it, I'm going to burn your house down."
Testimony at trial indicated that petitioner had a strained relationship with his sometimes neighbors, Jaromes and Owens. For example, the morning after the fire petitioner appeared at the house Jarmones and Owens shared, and challenged the two to a fight. Jarmones and Owens took turns fighting petitioner until the police were summoned.
Another witness, an acquaintance of petitioner, testified that petitioner similarly threatened to burn her house down if she failed to repay him money she owed him. This same witness testified that a day or two after the fire, petitioner told her that he burned down the house with gasoline ignited with a cigarette.
On the advice of counsel, petitioner did not testify. Prior to trial, the trial court determined that if petitioner elected to testify, the prosecution would be allowed to introduce some of his prior felony convictions as impeachment evidence.
Petitioner was convicted, as noted above, and filed a direct appeal in which he was represented by counsel. Petitioner also filed a pro se brief. The direct appeal raised five grounds of error, including a claim that the trial judge misapplied the Minnesota Rules of Evidence by ruling that the prosecution could use some of petitioner's prior convictions as impeachment evidence. Petitioner also challenged the trial court's determination that he was a "career offender." In the pro se brief, petitioner challenged the sufficiency of the evidence, and claimed ineffective assistance of trial counsel. He also claimed that the prosecution had failed to disclose certain exculpatory evidence.
The Minnesota Court of Appeals considered and rejected on the merits all five of petitioner's claims. State v. Lilienfeld, 2001 WL 215716 (Minn.Ct.App. Mar. 6, 2001), review denied (Minn. May 15, 2001).
Petitioner then brought a post-conviction motion in the trial court, raising three claims for relief which were all predicated on his contention that two critical witnesses for the prosecution (Jarmones and Owens) had committed perjury. The use of such perjured testimony, petitioner argued, amounted to prosecutorial misconduct, and the trial court erred by allowing the testimony. Similarly, petitioner argued, the trial attorney's failure to prevent the perjured testimony amounted to ineffective assistance. The trial court dismissed the petition on procedural grounds. Applying the rule announced in State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976), the trial court held that because the claims were known, or were knowable at the time of the direct appeal, they were procedurally defaulted. This summary dismissal was upheld on appeal. Lilienfeld v. State, C9-01-2103 (Minn.Ct.App. May 10, 2002). Further review was denied.
Petitioner then brought this writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises several issues, three of which were presented to the trial court in his post-conviction motion. A fourth issue was not raised in any prior proceeding. Specifically, petitioner challenges the pretrial ruling that would have allowed petitioner's prior convictions as impeachment evidence had he chosen to testify.
The Magistrate Judge questioned whether this issue was actually raised in the initial petition. In the interest of completeness, the Magistrate Judge discussed this issue. This Court will follow suit, and analyze the issue as if it had been properly raised in the initial petition.
ANALYSIS
I. Claims Related to Alleged Perjury
Before a federal district court may consider a state prisoner's petition for habeas corpus relief, the petitioner must exhaust all available state judicial remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Rose v. Lundy, 455 U.S. 509, 510 (1982); 28 U.S.C. § 2254(b)(1)(A). This rule reflects comity between federal and state judiciaries. Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (per curiam). There are limited exceptions to this long-standing rule of exhaustion; for example, failure to exhaust may be excused where there was "cause and prejudice" or where a fundamental miscarriage of justice would result. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In this case, the first three issues raised by petitioner — those related to allegedly perjurious testimony — are procedurally defaulted because they were not raised on direct appeal. As articulated by the trial court in its post-conviction ruling, and again by the Magistrate Judge in the RR, under Minnesota law, all matters raised on direct appeal, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief. Zenanko v. State, 587 N.W.2d 642, 644-45 (Minn. 1999) (quoting State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976)).
Federal law allows procedurally defaulted claims to be addressed on the merits only if one of the two exceptions noted above applies. In his brief, plaintiff argues that ineffective assistance of appellate counsel constitutes the requisite cause and prejudice for this Court to consider his claim on the merits. However, unless the ineffective assistance of appellate counsel claim has also been exhausted, the Court still cannot consider the underlying claims. Petitioner must first raise the ineffective assistance of appellate counsel claim in the state court. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000); Williams v. Kemna, 311 F.3d 895, 897 (8th Cir. 2002). In some circumstances, Minnesota courts will consider ineffective assistance of appellate counsel claims which are raised for the first time in post-conviction proceedings. See Ives v. Minn., 655 N.W.2d 633, 635 (Minn. 2003) (noting that post-conviction court may consider an ineffective assistance of counsel claim if the claim requires additional fact finding). However, if the ineffective assistance of appellate counsel claim could have been raised previously, it is unlikely that the post-conviction court will consider the claim. See Doppler v. Minn., 660 N.W.2d 797, 801-02 (Minn. 2003) (noting that the Knaffla rule applies to post-conviction claims of ineffective assistance of appellate counsel, and holding that petitioner's claim of ineffective assistance of appellate counsel was procedurally defaulted because he knew of the basis of the ineffective assistance of counsel claim at the time of his direct appeal). Nonetheless, the proper forum for petitioner's ineffective assistance of appellate counsel claim is in the state court, in the first instance.
Petitioner has failed to show that cause and prejudice exist for his failure to exhaust. The Court agrees with the Magistrate Judge's conclusion that petitioner does not qualify for the "actual innocence" exception to the exhaustion requirement, because petitioner has failed to offer argument or evidence of that theory. Because the claims are procedurally defaulted, and petitioner has not established cause and prejudice or actual innocence, the Court cannot consider the merits of his claims relating to alleged perjury.
II. Evidentiary Claim
The Magistrate Judge also considered whether the trial court's pretrial decision to allow prior felonies as impeachment evidence merits federal habeas relief. The Magistrate Judge noted that the contours of petitioner's claim are difficult to discern, but that under either reading of the claim, it must be rejected. This Court agrees.
If the claim is the same raised on direct review — that is, if petitioner is challenging the ruling under Minnesota rules of evidence and the Minnesota case law interpreting those rules, it is not cognizable as a federal habeas claim. See Estelle v. McGuire, 502 U.S. 62, 68 (1991).
On the other hand, if petitioner is attempting to argue that the trial court's ruling implicated the federal constitution, the claim is procedurally defaulted for failure to raise the claim in state court. Petitioner has not demonstrated cause and prejudice for the default. In addition, even if petitioner could establish cause for the procedural default, he cannot show prejudice, because the claim would likely fail on the merits. There is no indication that the admission of the convictions would have been constitutionally suspect. See, e.g., Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990); see also Luce v. United States, 469 U.S. 38, 43 (1984) (holding that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify).
For the reasons previously discussed, ineffective assistance of appellate counsel cannot serve as "cause" as the claim was not raised in state court.
The convictions included a conviction for aggravated robbery in 1988, felony theft in 1993, and third degree attempted burglary in 1998. State v. Lilienfeld, 2001 WL 215716 at *2.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES plaintiff's objection [Docket No. 15] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 14]. Accordingly, IT IS HEREBY ORDERED that the petition for a writ of habeas corpus [Docket No. 1] is DENIED, and this action is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.