United States District Court, D. Minnesota
Earley Romero Blevins, Pro Se, No. 175773, 1000 Lake Shore Drive, Moose Lake, Minnesota 55767.
Elizabeth Roosevelt Johnston and Jean E. Burdorf, Esqs., Hennepin County Attorney's Office, for Respondent.
Matthew Frank and James B. Early, Esqs., Minnesota Attorney General's Office, for Respondent.
REPORT AND RECOMMENDATION AND ORDER
STEVEN E. RAU, Magistrate Judge.
The above-captioned case comes before the undersigned on Petitioner Earley Romero Blevins's ("Blevins") Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") [Doc. No. 1] and Motion to Send Petitioner Back to Prison (DOC) ("Motion to Send Petitioner Back to Prison") [Doc. No. 22].
A jury convicted Blevins of aiding and abetting first-degree aggravated robbery, and the district court sentenced him to 129 months. State v. Blevins, No. A12-1479, 2013 WL 3368427, at *1 (Minn.Ct.App. July 8, 2013). In his Petition, Blevins argues the evidence was insufficient to convict him, the trial court violated its own rules by using criminal convictions more than ten years old, the trial court failed to provide a cautionary instruction to the jury, and that he received ineffective assistance of counsel. (Pet. at 6, 8-9, 11). The State argues Blevins's arguments about insufficient evidence and ineffective assistance of trial counsel are procedurally defaulted and fail on their merits regardless. See (State's Mem.) [Doc. No. 19 at 5-10, 14-19]. The State argues that Blevins's claims about the trial court's errors fail to state violations of the United States Constitution or federal law, and even if they did, they fail on their merits. See ( id. at 10-14).
This matter has been referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court recommends denying Blevins's Petition and dismissing the action. The Court denies the Motion to Send Petitioner Back to Prison as moot.
A. Background in State Court
1. Factual Background
The Minnesota Court of Appeals summarized the factual background as follows:
On the evening of February 21, 2012, H.K. was getting off a bus in Minneapolis when he saw two men who had harassed him in the past. Three days before, the men had pushed H.K. into traffic while he was waiting for a bus. H.K. had never spoken to the men except for some "trash talk." The men were later identified as Maurice Giles ["Giles"] and appellant Blevins.
As H.K. got off the bus, Giles yelled, "hey, are you looking at me[?]" H.K. testified that he normally ignored such taunts, "but it happened so many times, [he] got kind of fed up and just turned around." With a retractable baton in his hand, H.K. faced the two men and began retreating into a parking lot. The men advanced and when they got close enough to touch H.K., Blevins reached around Giles and punched H.K. in the jaw.
Giles and Blevins then took turns "coming at" H.K., striking him several times in the face and torso. H.K. unsuccessfully attempted to fight the men off and they eventually knocked him to the ground. Blevins then sat on top of H.K., took H.K.'s wallet out of his hip pocket, and handed it to Giles. Blevins and Giles argued about the wallet, which contained no money, and Giles eventually put the wallet back in H.K.'s pocket without taking anything.
Several bystanders saw the fight and called 911, and police quickly arrested Giles and Blevins. Hennepin County charged Blevins with one count of aiding and abetting first-degree aggravated robbery.
Blevins, 2013 WL 3368427, at *1.
2. Procedural History in State Court
Blevins agreed to plead guilty to a lesser-included offense, third-degree assault. (State's Mem. at 3). His plea was not accepted, however, because he did not admit to an adequate factual basis with respect to causing his victim's injuries, and the case proceeded to trial. ( Id. ); see also (Tr. of 5/16/2012 Hr'g, Resp't's App., "State's App.") [Doc. No. 20 at 14].
Two witnesses who observed the fight testified at trial that they saw Blevins searching H.K.'s pockets. Blevins testified in his own defense, and the district court allowed the state to impeach him with evidence of seven prior convictions. Blevins testified that he hit H.K. and that "a fight ensued." He admitted that he "went through [H.K.'s] pockets, " but stated that he did not take anything and that he did not intend to rob H.K.
Blevins, 2013 WL 3368427, at *1. The jury found him guilty of aiding and abetting first-degree aggravated robbery. Id. "[T]he district court sentenced [Blevins] to 129 months in prison, the presumptive sentence for a person with [his] extensive criminal history. Blevins appealed." Id.
On appeal, Blevins made arguments similar to those he raises in the instant Petition. He argued that there was insufficient evidence to convict him, that the district court abused its discretion in allowing the State to use seven prior convictions to impeach him, and that the district court erred by not giving the jury a cautionary instruction about the prior convictions. Id. at *1-2, *5. The Minnesota Court of Appeals affirmed. Id. at *5.
First, Blevins argued that there was insufficient evidence to support his aggravated robbery conviction because the State did not show that he used force against H.K. for the purpose of depriving him of property. Id. at *2. Instead, Blevins argued, moving H.K.'s wallet was an afterthought. Id. The appellate court noted that the robbery statute does not require the defendant to have intent to take property before using force. Id. Instead, it only requires the State to prove Blevins had a "purposeful or conscious desire to bring about a criminal result.'" Id. (quoting State v. Charlton, 338 N.W.2d 26, 30 (Minn. 1983)). The appellate court found it was reasonable for the jury to conclude "that Blevins took H.K.'s wallet knowing that he was not entitled to it and used force to compel H.K.'s acquiescence in the taking." Id. The appellate court stated Blevins "purposefully brought about the criminal result, " which was sufficient for the aggravated robbery conviction. Id. (citing Charlton, 338 N.W.2d at 30).
Second, Blevins argued "the district court abused its discretion in allowing the [S]tate to impeach him with evidence of seven... prior convictions." Id. Blevins argued that two of the convictions, "the 2005 theft-from-person conviction and the 2008 felon-in-possession conviction, " should not have been admitted because the district court "did not make particularized findings on the Jones factors." Id. at *3. The district court must consider the five Jones factors when exercising its discretion to determine whether the probative value of prior convictions outweighs their prejudicial effect. Id. (citing Minn. R. Evid. 609(a); State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). The factors considered are:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue.
Jones, 271 N.W.3d at 538. The appellate court found that although the district court did not analyze each factor for the 2005 and 2008 convictions, it referred back to its ruling regarding earlier convictions for some factors, which were the same for all of the convictions. Blevins, 2013 WL 3368427, at *3. Additionally, the district court analyzed the third factor-similarity of the past crime with the charged crime-separately. Id. The appellate court found there was no abuse of discretion in the district court's consideration of the Jones factors. Id. The appellate court then went on to consider each of the Jones factors for the convictions admitted into evidence. See id. at *3-5. Specifically, with respect to the convictions that were older than ten years, it found that under Minnesota Rule of Evidence 609(b), "the district court properly found that these are clearly crimes of dishonesty and would be very relevant... and are not outweighed by any unfair prejudice to the defendant." Id. at *4 (internal quotation marks omitted). It found the only factor that weighed against admission of the prior convictions was the centrality of evidence because "[t]his case did not come down to Blevins's word versus that of another witness." Id. at *5. Overall, the appellate court found "the district court did not abuse its discretion in determining that the probative value of Blevins's seven prior convictions outweighed their prejudicial effect." Id.
Finally, Blevins argued "the district court erred by failing to give the jury a cautionary instruction when the prior convictions were admitted." Id. Because Blevins did not object at trial, the appellate court applied plain-error review. Id. The appellate court found that there was plain error, but that it did not affect Blevins's substantial rights because the district court gave the jury a limiting instruction at the end of the trial and because the State did not heavily emphasize the prior convictions. Id.
Blevins filed a Petition for Review at the Minnesota Supreme Court through counsel. (Pet. for Review of Decision of Court of Appeals, "Pet. for Review, " State's App. at 48). Blevins sought review of the same three arguments advanced at the Minnesota Court of Appeals: there was insufficient evidence to convict him; the prior convictions were not appropriately evaluated under Jones and two of the convictions that were older than ten years did not meet the requirement that their probative value outweighed their prejudicial effect for admission; and the error of failing to provide a limiting instruction at the time the prior conviction evidence was admitted was not a harmless error. ( Id. at 54-57).
Blevins also filed a Motion to Accept Pro Se Petition for Review through counsel, which included his Pro Se Petition for Review. (Mot. to Accept Pro Se Pet. for Review of Decision of Court of Appeals, "Mot. to Accept Pro Se Pet. for Review, " State's App. at 62-63); ( Pro Se Pet. for Review of Decision of Court of Appeals, " Pro Se Pet. for Review, " State's App. at 58-61). In his motion, Blevins asked the Minnesota Supreme Court to consider his Pro Se Petition for Review because it would serve the interests of justice by providing complete review of pro se issues, because "appellate issues must be presented to the highest appellate court in the state to preserve the issues for potential federal review, " and because "justice would be served by granting this motion since [Blevins] did not have the opportunity to voice his arguments in a Pro Se Supplemental Brief at the lower appellate level." (Mot. to Accept Pro Se Pet. for Review at 63). In his Pro Se Petition for Review, Blevins argued there was insufficient evidence for the following reasons: the victim was not actually robbed and never reported that he was robbed; one witness's testimony in court-that he saw someone take the victim's wallet-did not match his statements during a police interview; a detective made a prejudicial statement that was inconsistent with his notes; and Blevins was being prosecuted because of his "extensive criminal history." ( Pro Se Pet. for Review at 59-61).
The Minnesota Supreme Court denied Blevins's Motion to Accept Pro Se Petition for Review and Blevins's Petition for Review. (Order, State v. Blevins, No. A12-1479 (Minn. Aug. 5, 2013), "Minn. Order Dated Aug. 5, 2013, " State's App. at 64); (Order, State ...