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Schultz v. Dooley

United States District Court, Eighth Circuit

November 18, 2013

JARED SCHULTZ, JR., Petitioner,


JANIE S. MAYERON, Magistrate Judge.

This matter came before the undersigned on petitioner Jared Schultz Jr.'s Amended Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody ("Amended Petition") [Docket No. 3]. The State answered, asking that the Amended Petition be denied in its entirety as meritless. [Docket No. 6]. The matter was referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1.


In April, 2007, petitioner Jared Schultz, Jr. pled guilty to one count of criminal sexual conduct after sexually penetrating an eleven year old girl. State v. Schultz, A10-44, 2010 WL 3220133 at *1 (Minn.Ct.App. Aug. 17, 2010) ("Schultz II").[1] At his sentencing hearing on July 16, 2007, the state district court granted a downwarddispositional sentencing departure. Id .; Respondent's Answer to §2254 Petition ("Resp. Answer"), Ex. 2 (sentencing transcript) [Docket No. 8-2]. The district court ordered that Schultz be committed to the Commissioner of Corrections for the presumptive term of 144 months, but stayed execution of the sentence on the following conditions:

No. 1): That [Schultz] be remanded to the custody of the Martin County sheriff for a period of one year, in additional to any time which he may have previously served.
Secondly, that he will have a sexual offender evaluation through a program such as the CORE program in Mankato; that he will follow specifically and faithfully each and every recommendation for counseling.
That he will have an assessment for any chemical dependency issues and likewise follow those without fail.
That he will continue with whatever counseling may be appropriate with [his counselor] until the counselor determines that it is no longer necessary. And the Court will look at [Schultz]'s progress on his sexual offender treatment before the expiration of one year and will determine at that point in time whether he merits the continued stay of execution or whether he has failed to meet the expectations of the Court and should therefore be committed directly to the Commissioner for the presumptive sentence.

Schultz II, 2010 WL 3220133 at *1 (quoting sentencing transcript, pp. 28-29). The following colloquy then took place on the record between district court Judge Robert Walker and the prosecutor:

Mr. Trushenski: And would the Court also order that Mr. Schultz have no contact with minor females under the age of 18?
The Court: Well, presumptively, so long as he's incarcerated that will be impossible, but when we get to the point of either him returning to a probationary status, we can address those issues.


After the sentencing hearing, the district court issued a written sentencing order describing the conditions of probation. Schultz II, 2010 WL 3220133 at *1. That order expressly stated that "[Schultz] will have no contact with minor females under the age of 18 years." Id . Later, the court granted Schultz a furlough from the Martin County jail to attend sex offender treatment. Id . The furlough order stated that while on furlough, Schultz was "to report to the treatment group in Mankato and immediately return to the Martin County Jail upon the conclusion of each treatment session." Id . While on furlough, Schultz was to "make no stops while in transit to the treatment program or while returning to the Martin County Jail." Id.

At a review hearing on March 10, 2008, [2] Schultz admitted that he had physical contact with his girlfriend while on furlough to attend sex-offender treatment and that he had contacted an underage female by letter. Resp. Answer, Ex. 4 (hearing transcript, March 10, 2008), pp. 4-5 [Docket No. 8-4]. The court executed Schultz's sentence and Schultz appealed to the Minnesota Court of Appeals. State v. Schultz, No. A08-936, 2009 WL 1586824 (Minn.Ct.App. June 9, 2009) ("Schultz I").

In his first appeal, Schultz argued that the district court abused its discretion in executing his sentence because the court failed to make the necessary findings under State v. Austin , 295 N.W.2d 246, 249-50 (Minn. 1980). *1. Pursuant to Austin, before a district court may revoke probation, it must "(1) designate the specific condition or conditions that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation." 295 N.W.2d at 250. The Court of Appeals agreed, noting "this record truly lacks a reasonable analysis of the final Austin factor-whether the need for communication outweighs the policies favoring probation." Schultz I, 2009 WL 1586824 at *4. The Court of Appeals remanded for further findings, concluding that "the Minnesota Supreme Court made it crystal clear in Austin that there is a sound public policy favoring probation, and the need for prison confinement must be shown by the state to outweigh that policy. At this point, an explanation of that factor is lacking." Id.

On remand, the state district court held a contested hearing on the revocation of Schultz's probation. Resp. Answer, Ex. 5 (hearing transcript, September 23, 2009). At that hearing, the state alleged that Schultz violated his probation by: (1) failing to make progress on his behavior; (2) failing to attend psychological counseling; (3) violating the terms of his furlough; (4) attempting to contact a female under the age of 18; and (5) violating the rules of the jail. Id., pp. 7-12. Schultz argued that the no-contact-withminor-females restriction was not a condition of his probation, as it was not specifically ordered by the district court at the sentencing hearing. Id., pp. 13-14. Schultz did not dispute that the no-contact-with-minors provision was reflected in the court's written sentencing order or that he signed a probation contract containing the same provision. Id., pp. 7, 13-14.

The state district court found that Schultz had violated three conditions of probation: (1) failing to continue mental-health counseling; (2) having sexual contact with his 19-year-old girlfriend while on furlough from the Martin County Jail to attend sex-offender treatment; and (3) attempting to contact a female under the age of 18 while he was in jail. Amended Petition, Ex. 4 (district court Findings & Order on September 23, 2009 contested hearing) [Docket No. 4]. The district court further found that Schultz's violations were intentional and inexcusable and that they were indicative of Schultz's continuing threat to public safety if his probation was not revoked. Id., Findings, ¶15. Schultz's probation agent testified at the hearing that it would be difficult to supervise Schultz and he would be a threat to public safety. Id., Findings, ¶12. The district court revoked Schultz's stayed prison sentence and committed him to the Commissioner of Corrections. Id., Order, ¶ 1.

Schultz appealed the state court's order to the Minnesota Court of Appeals on January 8, 2010. Amended Petition, p. 3; Schultz II, 2010 WL 3220133. On appeal, Schultz did not deny that he failed to continue with his mental health treatment, that he had contact with his girlfriend while on furlough to attend mental health treatment, or that he attempted to contact a minor female while in jail. Schultz II, 2010 WL 3220133 at *3. Nonetheless, Schultz argued that his attempted contact with a minor female was not a violation of his probation because the district court did not pronounce the nocontact provision orally at the sentencing hearing. Id.[3] Schultz argued that "because the [district c]ourt's oral pronouncement controls over the written order... the nocontact-with-minor-females provision was not a true condition of [his] probation, and his probation cannot be revoked because he attempted to have such contact." Id . (alterations and ellipsis in original). Further, the difference between the written order and the oral statement created confusion that rendered Schultz's actions excusable. Id. at *4.

The Court of Appeals first described the law that bore on its analysis:

In probation revocation proceedings, the condition alleged to have been violated must be a condition of probation that has in fact been imposed by the district court.' State v. Ornelas , 675 N.W.2d 74, 75 (Minn. 2004). When pronouncing a sentence, the district court must [s]tate precisely the terms of the sentence.' Minn. R.Crim. P. 27.03, subd. 4(A). "[T]he responsibility for stating the precise terms of a sentence rests squarely with the [district] court.' State v. Staloch , 643 N.W.2d 329, 332 (Minn.App. 2002). [A]n orally pronounced sentence controls over a judgment and commitment order when the two conflict.' 331 (quoting United States v. Villano , 816 F.2d 1448, 1450-52 (10th Cir. 1987)). But [w]hen an orally pronounced sentence is ambiguous... the judgment and commitment order is evidence which may be used to determine the intended sentence.' Id. (quoting Villano , 816 F.2d at 1451). This is the purpose of the written order: to clarify an ambiguous oral sentence by providing evidence of what was said from the bench.' Id. (quotation omitted).

Schultz II, 2010 WL 3220133 at *3 (footnote omitted).

Then the appellate court found that the district court's oral statement regarding no-contact-with-minors was ambiguous. *4. Addressing Schultz's argument that the court had denied the State's request for a no-contact order, the Court of Appeals found that another interpretation of the oral statement was possible-that the court did not approve of Schultz contacting minors, did not intend for Schultz to have such contact and felt that an express order preventing contact was not necessary as it would be "impossible" while Schultz was in jail. *3.

Next, the Court of Appeals found that the district court's written sentencing order clarified the district court's direction regarding no contact with minors as a condition of probation and, therefore, the first Austin factor was satisfied. Id., at *4. The appellate court further found that any confusion Schultz contended arose because of the disparity between the district court's oral statements at sentencing and the written sentencing order did not render his violation of the no-contact term excusable. Id . The district court had clearly expressed its disapproval of Schultz having contact with minor females and its written order prohibited it-additionally, the court-ordered sexual-offender evaluation recommended that Schultz have no contact with minor females. Id . Schultz had admitted in court that his contact with his girlfriend while he was on furlough showed that he would "probably not listen to and abide by ...

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