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Wheatley v. Roy

United States District Court, Eighth Circuit

October 29, 2013

PRENTICE WHEATLEY, Petitioner,
v.
Commissioner TOM ROY, Respondent.

Prentice Wheatley, Minnesota Correctional Facility-Oak Park Heights, 5329 Osgood Avenue North, Stillwater, Minnesota, 55082, Petitioner, pro se.

Linda M. Freyer, Assistant Hennepin County Attorney, 300 South Sixth Street, Government Center Suite C-2000, Minneapolis, Minnesota, 55487, for Respondent.

REPORT AND RECOMMENDATION

ARTHUR J. BOYLAN, Chief Magistrate Judge.

This matter is before the undersigned Magistrate Judge of the District Court on the petition of Prentice Wheatley for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) Respondent has filed a response, (Docket Nos. 8-11), contending that the petition should be dismissed, and Petitioner has filed a Reply Memorandum with supporting materials, (Docket Nos. 12-14). The case 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 will recommend that Petitioner's habeas corpus petition be DENIED, and that this action be DISMISSED WITH PREJUDICE.

I. BACKGROUND

In April 2007, Petitioner beat or whipped his fourteen-year-old daughter with an extension cord and a belt. The daughter, SW, reported her injuries to a school social worker, who in turn reported the matter to the police. On May 29, 2007, Petitioner was charged with third degree assault. (Respondent's Appendix, [Docket No. 10], [hereafter "RA"], pp. 1-2.) Sometime thereafter, SW was examined by a medical doctor named Mark Hudson. After examining SW, Dr. Hudson reported that "scars caused by the beating will remain indefinitely and could disfigure her for the rest of her life." (Id., p. 5.) Based on Dr. Hudson's report, the criminal complaint against Petitioner was amended to include an additional charge of first degree assault. (Id., pp. 4-6.) The amended complaint is dated October 2, 2007.

Petitioner's case came before the trial court "for trial on stipulated facts" on November 21, 2007. (Id., p. 8.) The trial court found that Petitioner had waived his right to present testimony, his right to require prosecution witnesses to testify in open court and be subject to cross-examination, and his right to have the charges against him decided by a jury. (Id.) The stipulated facts presented to the trial court included a medical report, (namely Dr. Hudson's report), and photographs of SW's injuries that were taken on the day of the trial. (Id.) The trial court found that "[p]hotographs taken on the day of trial, seven months later, [i.e., seven months after Petitioner beat SW] show that scars remain on her arms, her legs, her buttocks, and her shoulders." (Id., p. 9.) The trial court further found that "[t]he remaining scars are pronounced, apparent, and easily visible, " and "[t]hey appear to be, and in the opinion of medical professionals are, permanent." (Id.) Based on those findings, the trial court determined that "[t]he scars are a permanent disfigurement within the meaning of Minn.Stat. § 609.02." (Id.)

Petitioner urged the trial court to find him not guilty of first degree assault, because he had "accepted responsibility for his actions, " he was "trying to correct S.W.'s bad behavior when he beat her, " and he had spared SW from having to testify at his trial. (Id.) Petitioner further argued that he should be acquitted on the first degree assault charge, because SW's injuries were "much less severe than those suffered by the typical victim of First Degree Assault." (Id., p. 10.) However, the trial court rejected Petitioner's arguments, and found him guilty of first degree assault. The "lesser offense of Assault in the Third Degree" was "merge[d]" with the first degree assault conviction. (Id.)

Petitioner was later sentenced to 125 months in state prison. He is presently serving his sentence at the Minnesota Correctional Facility at Oak Park Heights, Minnesota.

After Petitioner was convicted and sentenced, he filed a direct appeal. At Petitioner's request, the appeal was stayed so he could pursue a state post-conviction motion. After Petitioner's post-conviction motion was denied, he asked the Minnesota Court of Appeals to extend the stay of his still-pending appeal, so he could pursue a second post-conviction motion. Petitioner's second request for a stay was denied, and his appeal eventually was dismissed without any ruling on any claims, because he failed to comply with a briefing order entered by the Court of Appeals.

While Petitioner's appeal was still pending, he did file a second post-conviction motion, but that motion was withdrawn before it was adjudicated. In December 2009, Petitioner filed a third post-conviction motion, claiming that (i) the criminal charges that were filed against him were improper, (ii) he was deprived of his constitutional right to cross-examine Dr. Hudson, and (iii) he was deprived of his constitutional right to effective assistance of counsel.[1] Petitioner's third post-conviction motion was denied on the merits in March 2010.[2]

Petitioner later filed two more motions in the trial court, which were treated together as a fourth post-conviction motion.[3] In that motion, Petitioner contended that the trial court "erred in its convictions of 1stand 3rd degree assault for the same crime." (RA, p. 60.) Petitioner's fourth post-conviction motion was denied on the merits on July 27, 2010.[4]

In September 2010, Petitioner filed his fifth post-conviction motion. In that motion, Petitioner asked the trial court to conduct an evidentiary hearing, so he could present new evidence that purportedly would have shown that SW did not really suffer any permanent disfiguring injuries.[5] Petitioner sought to introduce testimony from SW's mother, who worked as a "medical assistant" at a dermatology clinic. According to Petitioner, SW's mother would have testified that SW no longer had any remaining visible scars as a result of the beating inflicted by Petitioner three and a half years earlier. (It will be recalled that Petitioner assaulted SW in April 2007, and he filed his fifth post-conviction motion in September 2010.) Petitioner's motion identified SW's mother as an "expert witness, " who supposedly would have been able to show that SW never had any permanent injuries. To support that proposition, Petitioner filed an "affidavit" with his motion, which purportedly shows that "[t]his expert witness... [i.e., SW's mother], determined without question, that the scars from 2007 were not permanent, and that they never were." (RA p. 80.)[6] According to Petitioner, SW's mother would have provided testimony at an evidentiary hearing that would have disproved one of the essential elements of his conviction for first degree assault - i.e., that SW suffered a "permanent disfigurement."[7] However, the trial court refused to conduct an evidentiary hearing, and Petitioner's fifth post-conviction motion was denied on November 9, 2010.[8]

As noted above, Petitioner's third post-conviction motion was denied in March 2010. Petitioner attempted to appeal that ruling in a Notice of Appeal that was filed on September 17, 2010. The Minnesota Court of Appeals found that the Notice of Appeal was untimely with respect to the third post-conviction motion, but further found that the Notice of Appeal could be treated as a timely appeal with respect to the fourth post-conviction motion, (which had been denied by the trial court in July 2010). Thus, the Court of Appeals concluded that the claims litigated in the third post-conviction motion could not be reviewed on appeal, but the claims litigated in the fourth post-conviction motion could be reviewed on appeal. (See Order of the Minnesota Court of Appeals dated October 14, 2010, [RA pp. 96-98].)

Petitioner subsequently filed a timely appeal from the denial of his fifth post-conviction motion, (requesting a hearing to produce "new evidence" regarding SW's injuries), and that appeal was consolidated with the appeal on the fourth post-conviction motion. On June 20, 2011, the Minnesota Court of Appeals rendered a decision upholding the trial court's rulings on both the fourth and fifth post-conviction motions. Wheatley v. State, Nos. A10-1669 and A10-2234 (Minn.App. 2011), 2011 WL 2437460 (unpublished opinion). The Minnesota Supreme Court denied Petitioner's application for further review on September 20, 2011. Id.

After the Minnesota state courts failed to overturn Petitioner's conviction, (in five separate post-conviction proceedings), he filed his present application for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. The current petition lists two grounds for relief. In "Ground One, " Petitioner claims that he was denied due process when the trial court refused to conduct an evidentiary hearing on the matters raised in his fifth state postconviction motion. Petitioner contends that he should have been allowed to present testimony from his "expert witness, " (SW's mother), to show that SW did not suffer any permanent disfiguring injuries. (Petition, [Docket No. 1], p. 6.) In "Ground Two, " Petitioner claims that he was denied due process, because he was "improperly charged and convicted" for first degree assault, rather than "malicious punishment of a child." (Id., p. 8.) Petitioner contends that the Minnesota state legislature intended that parents who inflict injuries on their children should be prosecuted under the "more specific statute, " (i.e., "malicious punishment of a child"), rather than the "more general statute, " (i.e., assault).

After Respondent filed an answer addressing the two claims presented in the petition, Petitioner filed a reply memorandum that appears to include an entirely new claim that is not listed in his petition - a claim of ineffective assistance of counsel. (See "Petitioner's Reply To State's Response To His Petition For Writ Of Habeas Corpus Supplemental Brief, " [Docket No. 12], [hereafter "Reply"], pp. 19-26.) Because no such claim was listed in the petition, and Respondent has had no chance to address it, the Court questions whether the claim is properly reviewable here. However, the Court will give Petitioner the benefit of the doubt, and will consider whether he has presented a viable ineffective assistance of counsel claim.

For the reasons discussed below, the Court finds that none of Petitioner's claims for habeas corpus ...


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