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Burks v. State

United States District Court, D. Minnesota

December 29, 2014

JEROME BURKS, Petitioner,

Jerome Burks, No. 221225, Minnesota Correctional Facility-Stillwater, 970 Pickett Street North, Bayport, MN 55003, pro se.

James P. Spencer, Assistant County Attorney, OLMSTED COUNTY ATTORNEY'S OFFICE, 151 Fourth Street S.E., Rochester, MN 55904, for respondent.


JOHN R. TUNHEIM, Magistrate Judge.

Petitioner Jerome Burks filed a petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This matter is now before the Court on Burks's objections to the Report and Recommendation ("R&R") of United States Magistrate Judge Tony N. Leung. The Magistrate Judge recommended that the Court deny Burks's application for habeas corpus relief and dismiss this action with prejudice. Burks has objected to the R&R. Because Burks failed to present his constitutional claims to the state court and the time for doing so has now elapsed, the Court will overrule his objections, adopt the R&R, and dismiss Burks's petition with prejudice.


A. State Court Proceedings

Petitioner Jerome Burks was charged with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i); third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c); and first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a). State v. Burks, Nos. A10-972, A10-973, 2012 WL 1149322, at *1 (Minn.Ct.App. Apr. 9, 2012). The criminal sexual conduct charges related to one incident, and the burglary charge related to a second incident. Id. The incidents occurred roughly two hours apart on the same night, but each was charged by a separate complaint. Id. Because the incidents involved substantially overlapping discovery, Burks's counsel moved to join the complaints for trial pursuant to Minnesota Rule of Criminal Procedure 17.03. Id. The prosecution did not oppose the motion, and the trial court ordered that the charges be joined. Id. At trial, the jury convicted Burks of all three charges. Id. at *3. On March 4, 2010, he was sentenced to 281 months in prison on the first-degree criminal sexual conduct conviction, and 21 months in prison on the first-degree burglary conviction. (App. to Resp't's Mem. in Supp. of Mot. to Dismiss ("App. to Resp't's Mem."), Ex. 1 (Appellant's Br. in the Minn. Ct. of Appeals ("Appellant's Br.")), at 9, Oct. 15, 2013, Docket No. 12.)[1]

Following his conviction, Burks filed a post-conviction petition alleging ineffective assistance of counsel. Burks, 2012 WL 1149322, at *3. He argued that his counsel's request to join the separate charges was baseless and prejudicial to him. Id. He also requested an evidentiary hearing on the matter. The trial court denied Burks's petition without an evidentiary hearing. Id.

Burks challenged his conviction and the trial court's denial of his post-conviction petition on a consolidated appeal to the Minnesota Court of Appeals. Id. at *1, *3. In his appeal, Burks made three arguments. First, he asserted that the trial court erred by instructing the jury that the testimony of an alleged victim of criminal sexual conduct need not be corroborated. (Appellant's Br. 26-31.) Second, he argued that the trial court made several evidentiary errors, including allowing inadmissible evidence, limiting Burks's questioning of a witness with respect to potential bias, and overruling an objection by Burks regarding a police officer's testimony. ( Id. at 32-45.) Third, he claimed that the trial court had abused its discretion by denying, without an evidentiary hearing, his post-conviction petition regarding ineffective assistance of counsel. ( Id. at 46-54.) The Court of Appeals affirmed the trial court's denial. Burks, 2012 WL 1149322, at *11.

Burks then petitioned for review by the Minnesota Supreme Court. (App. to Resp't's Mem., Ex. 3 (Pet. for Review of Decision of Ct. of Appeals ("Supreme Ct. Pet.")).) In his petition, Burks challenged only the Court of Appeals' affirmance of the trial court's denial - without an evidentiary hearing - of Burks's ineffective assistance of counsel claim. ( See id. ) On June 27, 2012, the Minnesota Supreme Court denied discretionary review.

B. Procedural History

In August 2013, Burks filed this action in federal court, seeking habeas corpus relief under 28 U.S.C. § 2254. (Pet. for Writ of Habeas Corpus ("Habeas Pet."), Aug. 27, 2013, Docket No. 7.) In the "[s]upporting facts" section of the petition, Burks explains, "[M]y lawyer and I believe I got too much time[.] Also[, ] the inconsistencies in my testimony to theirs... prove[s] them false. I also deserve more lieniency [sic] with my case due to my health difficulties and the way I was convicted in my case." ( Id. at 5.) The petition does not elaborate on why Burks believes he "got too much time" or what he feels are the inconsistencies in the testimony.

Although Burks appears to indicate in his petition that he has no additional grounds for his appeal, ( see id. at 7-10), his petition also includes a handwritten affidavit, which raises arguments concerning his mental incompetence and insufficiency of the evidence supporting a conviction. ( See id., Ex. 1 (Aff. of J. Burks).) With respect to competency to stand trial, Burks declares in his handwritten affidavit:

Defendant[']s attorney ask[ed] the trial court to delay sentencing and to order an evaluation of Defendant pursuant to Minnesota[] Rule 20 to determine whether "JB" Defendant was competent to be sentenced. Because "JBs" counsel was also incompetent (as defense counsel states on the record on the first day of trial), because of this ineffective ...

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