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Barnes v. Hammer

United States District Court, Eighth Circuit

August 29, 2013

Danny Kwami Barnes, Plaintiff,
v.
Steve Hammer, and Attorney General of the State of Minnesota, Defendants.

REPORT AND RECOMMENDATION

STEVEN E. RAU, Magistrate Judge.

This matter is before the on the petition of Danny Kwami Barnes, ("Petitioner"), for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents have filed an answer to the petition, and the issues have been briefed fully by the parties. The matter has been referred to this Court for report and recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that Petitioner's habeas corpus petition be DENIED, and that this action be DISMISSED WITH PREJUDICE.

I. BACKGROUND

Petitioner is a Minnesota state prison inmate. He is presently serving a 138-month prison sentence, that was imposed after he was found guilty of kidnapping, first degree burglary with a dangerous weapon, second degree assault with a dangerous weapon, fifth degree assault, and aiding and abetting fifth degree assault. Petitioner was convicted following a two-day trial in Big Stone County, Minnesota. Petitioner waived his right to a jury trial and the case was tried before a state district court judge.

Petitioner now claims that his convictions and his sentence should be vacated, because he was deprived of his constitutional right to effective assistance of counsel during the pre-trial stage of his state criminal case. Specifically, he contends that his attorneys did not properly advise him about (a) his potential prison sentence, and (b) whether he should accept a proffered plea agreement.

After his conviction and sentencing, Petitioner filed a direct appeal. The Minnesota Court of Appeals' subsequent decision on that appeal provides the following summary of the factual background of this case:

In June 2009, Barnes was the pastor of Thy Kingdom Come church in the city of Wheaton. He was concerned at that time about a member of the church, M.B., who had strayed from the church's teachings by using drugs and alcohol and by leaving his wife and child, who remained with the congregation, and moving into a home with people who were not members of the congregation.

On the evening of June 22, 2009, Barnes led a group of six or more parishioners on an expedition to capture M.B. from the home where he recently had been staying and to take him to the home of the man's father, C.B., who was an assistant pastor of the church. The group entered the home at approximately 11:00 p.m. by smashing a glass door. They found M.B. hiding under a bed, beat him, dragged him down a flight of stairs, beat him again, placed him in a vehicle, and drove him to C.B.'s home. Barnes's party also threatened the other four residents of the home and physically assaulted one of them. The details of the home invasion were described extensively at trial but need not be repeated here.[1] Several persons reported the incident to law-enforcement officials by telephone. Big Stone County and Traverse County sheriffs' deputies arrested Barnes that night at C.B.'s home and detained him at the Traverse County jail.

Two days after the incident, the state filed a complaint that charged Barnes with four offenses. The state later amended the complaint to allege 14 offenses, including kidnapping, burglary, assault with a dangerous weapon, criminal damage to property, false imprisonment, terroristic threats, and simple assault. On July 13, 2009, the state served Barnes with notice of its intention to seek an aggravated sentence due to (1) the commission of the crime by a party of three or more, (2) the multiple victims, and (3) the use of a firearm during commission of the crime."

State v. Barnes, No. A10-792 (Minn.App. 2012), 2012 WL 762177 at *1 (unpublished opinion), rev. denied, May 30, 2012.

During the first several weeks after the charges were filed, Petitioner represented himself without a lawyer, but beginning in July 2009, a public defender named Kenneth Hamrum represented him. Hamrum informed Petitioner that if he were found guilty of a crime involving a gun, he would be sentenced to a mandatory minimum of 36 months in prison, and if he were found guilty of multiple offenses, he could be facing additional prison time. (Hamrum provided this information at a post-conviction evidentiary hearing. The transcript from that hearing is included in the present record as Petitioner's Appendix E, [Docket No. 3-5], [hereafter "PCT"].)

While Hamrum was representing Petitioner, the County Attorney offered a plea deal that would have required Petitioner to plead guilty to one of the charges against him. The proposed deal called for a 36-month prison sentence, and dismissal of the remaining charges. Hamrum conveyed the plea offer to Petitioner, who was unwilling to accept it. According to Hamrum, Petitioner was not interested in a plea agreement that involved a prison term. (PCT, p. 68.) Furthermore, Petitioner wanted to work out an agreement that would help some of the other people who had been charged in connection with the home invasion and kidnapping. ( Id. )

Shortly before Petitioner's case was scheduled to go to trial in October 2009, he discharged Attorney Hamrum and sought other counsel. The trial was postponed, and Petitioner retained Attorney Jerome Lewis to represent him. Lewis quickly asked Attorney Mitchell Robinson to serve as co-counsel. Petitioner met with Lewis and Robinson, and paid them separate retainers totaling $25, 000.

Petitioner's trial was rescheduled for January 2010. Petitioner was being held in jail pending the trial.[2] While in jail, Petitioner had several telephone conversations with his attorneys. Some of those conversations were recorded, (presumably by jail personnel), and the transcripts of those conversations are included in the current record. (Petitioner's Exhibits, [Docket No. 3-1], [hereafter "Tel.Tr."].) Those conversations show that Petitioner and his attorneys vacillated about whether Petitioner should go to trial, or try to enter into a plea agreement.

Initially, Petitioner believed Attorney Robinson was advising him to accept the 36-month prison sentence plea agreement previously offered to Attorney Hamrum. (Tel.Tr., p. 1.) Petitioner told Attorney Lewis that he was not pleased with that advice, commenting that "I could have took that deal four months ago, " and "I'm ready for trial." ( Id., pp. 1, 2.) Lewis told Petitioner that Robinson might have been concerned about Petitioner's defense, because "some of the witnesses have changed their story, " but he assured Petitioner "we're ready" for trial. ( Id., p. 2.) Shortly thereafter, Lewis told Petitioner that the proffered plea agreement might not be available indefinitely, but Attorney Robinson "is not telling you to take it, [and] I don't think you should take it either, for that matter." ( Id., p. 3.) When Petitioner told Lewis that Robinson seemed to have some concerns about going to trial, Lewis reiterated that he and Robinson were not recommending that Petitioner should accept the proposed plea agreement. ( Id., p. 4.) Lewis specifically stated, "I would not take the three years, no." ( Id. ) In fact, Lewis repeatedly advised Petitioner that he should not accept the plea agreement calling for a 36-month sentence, (id., pp. 4-7), and they should "try for something better, " ( id., p. 6.) Robinson also said that he was not advising Petitioner "to take a three year prison offer." ( Id., p. 8.) Petitioner appeared to accept that advice, telling Lewis, "I don't mind going to trial." ( Id., p. 6.)

Although Petitioner asserted that he was ready to try the case, he remained concerned about any sentence that might be imposed upon a guilty verdict. He told Robinson "there's a chance that the sentence I'm looking at on my complaint is between fifteen and twenty-five years." ( Id., p. 9.) Petitioner reiterated, however, that he was not prepared to accept the 36-month plea deal presented to Attorney Hamrum before Lewis and Robinson were retained. He told Robinson, "For me to spend $25, 000 and not do better than I was doing before we started, then that's not acceptable to me." ( Id., p. 11.)

At one point during these attorney-client conversations, Attorney Robinson pointed out that if Petitioner accepted the plea proposal, he probably would be out of prison in about two years. He also reminded Petitioner that if he were to be acquitted, then of course he would not spend any time in prison. Finally, he opined that if Petitioner went to trial and was found guilty, "my feeling is, if we lose, I don't see the Judge giving you more than 46 months." ( Id., p. 9.) Petitioner questioned whether his sentence really would be that short, pointing out that "the Sentencing Guidelines and what the charges carry is more than 48 months, " and, in fact, "the paperwork and my grid... shows 15 to 25." ( Id., p. 10.) Robinson insisted that his 46-month prediction was not an "arbitrary" guess, but Petitioner again challenged Robinson, asking him - "With my criminal history?" ( Id. ) Robinson then acknowledged that he did not know Petitioner's criminal history, which obviously meant that Robinson's sentencing prognostications did not take into account Petitioner's criminal history. ( Id. )

Robinson also predicted that Petitioner would have a "50/50 shot of winning this at trial, " but he offered no explanation for that prediction. ( Id., p. 12.) He merely stated, "I know what I'm doing." ( Id. ) Petitioner was not happy to hear Robinson's "50/50" prediction "a week before trial." ( Id., p. 13.) Robinson responded that his earlier assessments, which apparently were more optimistic, had been made before he had reviewed the evidence, and thus, he did not previously have "a firm grasp of the case we're dealing with." ( Id. ) When Petitioner reiterated that he did not like Robinson's "50/50" assessment, Robinson reminded Petitioner that he still could "take the three-year deal." ( Id. ) Petitioner stated that if he accepted the three-year deal, instead of going to trial, he expected Robinson and Lewis to refund part of his retainer. Robinson flatly rejected that notion, telling Petitioner: "I am not refunding any money. I was paid to do a job. I'm prepared to do a job. I'm ready to do it." ( Id., p. 14.) At that point, Petitioner refused to discuss the matter any further, and cryptically told Robinson, "we'll just leave everything the way it is and I'll set up grounds for an appeal." ( Id., p. 14.)

The next recorded conversation was between Petitioner and Attorney Lewis. Petitioner expressed concern about how the trial appeared to be shaping up, telling Lewis that the prosecution had 40 witnesses lined up, and Robinson had not even heard Petitioner's "side of the story." ( Id., p. 17.) Petitioner also questioned Robinson's predictions regarding his prospects for acquittal and potential prison sentence. Lewis tried to assure Petitioner that Robinson was a skilled trial lawyer, and the case probably would still be resolved with "a good deal" in any event. ( Id. ) Petitioner challenged Lewis, asking him what would happen if the case did not get resolved. He reminded Lewis that he would still be facing "15 to 25 years" on the various charges against him, and Lewis did not disagree. ( Id., p. 18.)

Later that evening, Petitioner talked to Attorney Robinson about possible plea bargains. Robinson reported that the County Attorney had rejected a plea proposal involving probation and a ten-year sentence that would be stayed. ( Id., p. 20.) The County Attorney told Robinson that Petitioner "needs to go to prison" and he was "standing firm" on the offer of 36 months. ( Id. ) Robinson indicated that he was waiting to hear back from the County Attorney about another plea proposal that would include a 36-month prison term, but would dismiss the charges that were pending against another party who had been involved in the home invasion crimes. ( Id. )

The other party that Robinson and Petitioner were referring to was a man named Chuck Bauer, who was an assistant pastor at Petitioner's church. It was Bauer's son, Max, who was pulled out from under a bed and forcibly abducted during the home invasion. Bauer was facing felony charges as a result of his own involvement in the home invasion, and Petitioner wanted to help Bauer. Petitioner hoped that the County Attorney would dismiss the charges against Bauer, if Petitioner agreed to enter into a plea agreement calling for a 36-month sentence for himself.

On January 4, 2010, Robinson informed Petitioner that the County Attorney would not accept Petitioner's proposal. The County Attorney, however, made a counterproposal that would "allow Chuck Bauer to enter a plea of guilty to a felony charge that he'll work out with Chuck Bauer's attorney... with a stay of imposition." ( Id., p. 22.) Under the terms of that proposal, if Bauer successfully completed a period of probation, the felony would be "drop[ped] off his record." ( Id. ) Robinson told Petitioner that he had specifically talked to the County Attorney about whether Bauer could plead guilty to a misdemeanor, rather than a felony, but the County Attorney insisted this was his "bottom line, " and Bauer had to "plead to a felony." ( Id. ) After hearing this report from Robinson, Petitioner said that he would have to find out whether Bauer would accept the proposal. ( Id. ) Petitioner continued to insist that he wanted to help Bauer, and he wanted a plea deal that was better than the original deal offered to Attorney Hamrum a few months earlier. ( Id., pp. 23-24.)

Later that afternoon, in the last recorded communication between Petitioner and his counsel in this record, Petitioner left a voicemail message for Robinson:

Yeah, Pastor Chuck [i.e., Bauer] said that he cannot have any felonies on his record at all so we're going forward with trial unless you come up with something else but we'll go to trial and win. Thank you. And I'm sorry.

( Id., p. 26.)

A few days later, Lewis and Robinson tried the case on behalf of Petitioner. As previously noted, Petitioner waived his right to a jury, and the trial judge found him guilty on five counts. He was sentenced to a 138 months in prison B nearly four times as long as the 36-month sentence in the plea deal offered by the County Attorney.

Petitioner filed an appeal shortly after he was convicted and sentenced, but he asked to have his appeal stayed, so he could file a post-conviction motion. The stay request was granted, and Petitioner then filed a post-conviction motion in the trial court claiming that he had been deprived of his constitutional right to effective assistance of counsel. Petitioner argued that Attorneys Lewis and Robinson did not provide him with competent legal representation during the plea bargaining discussions preceding trial.

On March 2, 2011, the trial court conducted an evidentiary hearing on Petitioner's post-conviction motion. New counsel represented Petitioner and he offered his own testimony in support of his ineffective assistance claim. The trial court also heard testimony from Attorney Hamrum, (the public defender who originally represented Petitioner), and from Attorney Robinson. In addition, the trial court record included transcripts of the conversations between Petitioner and his attorneys, and a video recording of a church sermon that Petitioner gave within a week or two after he was charged with the home invasion offenses.

In the video-recorded sermon that was introduced during the post-conviction proceedings, Petitioner told the congregation that "theoretically" he had been involved in the home invasion.[3] Petitioner acknowledged that he could be facing up to 24 years in prison, because he had "theoretically escorted" Chuck Bauer's son, Max, "out of the building." Petitioner also told the congregation that if he did go to prison for 24 years, "it'll be worth it, " because he was willing to lay down his life for a brother. (A partial transcript of the sermon is included in the record at Respondents' Exhibit K, [Docket No. 11-3].)

During this evidentiary hearing, Petitioner was asked how he knew that he could be facing 24 years in prison, as he had stated during his sermon. Petitioner indicated that he said he looked at a "piece of paper" that he had received from the County Attorney, (i.e., a charging document), and he had added up the potential prison sentences listed for the various charged offenses. (PCT, p. 16.)

The trial court judge denied Petitioner's post-conviction motion in a 21-page decision. (A copy of that decision is included in the present record as Petitioner's Appendix B, [Docket No. 3-2], [hereafter "PC-Dec."].) Applying the standards and criteria prescribed by Strickland v. Washington, 466 U.S. 668 (1984), the judge concluded that Petitioner's claim of ineffective assistance of counsel was unsustainable, because he had not shown (a) that his attorneys' performance "failed to satisfy objectively reasonable standards, " and (b) that he was prejudiced by any shortcomings of his legal representation. (PC-Dec., p. 18.) On the prejudice issue, the judge found that Petitioner failed to establish that he would have accepted the 36-month plea deal, if not for the allegedly incompetent legal advice. ( Id. ) The judge stated that "[t]he testimony of both Mr. Hamrum and Mr. Robinson, plus the content of some of the recorded telephone conversations, makes it clear that the reason [Petitioner] did not accept the 36 month plea offer was because he could not get favorable treatment for co-defendant Chuck Bauer." ( Id. )

After denial of Petitioner's post-conviction motion by the Minnesota Court of Appeals considered his appeal. The Court of Appeals first rejected two claims not at issue here, and then considered ...


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