United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BECKY R. THORSON, Magistrate Judge.
Petitioner Anthony Nasseff, Jr., a Minnesota state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Nasseff alleges in his habeas petition that the State of Minnesota has wrongfully withdrawn good-time credits that he accumulated during his time in prison towards his release date. ( See Doc. No. 1, Petition at 5.) Nasseff also alleges that the 120-month term of imprisonment imposed in his criminal case violates his Eighth Amendment right against cruel and unusual punishment. ( Id. ) The Court conducted a preliminary review of Nasseff's habeas petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
Upon initial review of the habeas petition, it did not appear that Nasseff had exhausted state remedies for the claims raised in the petition. (Doc. No. 7, Order at 2-3.) Accordingly, the Court ordered Nasseff to file an affidavit and exhibits demonstrating that he had in fact exhausted state remedies. ( Id. ) Nasseff was further ordered his "affidavit must show when and how Nasseff's claim was presented to the Minnesota Court of Appeals and the Minnesota Supreme Court (including the federal nature of the claim), and when and how those courts adjudicated his claim." ( Id. at 3.)
Nasseff has since filed a letter to the Court in which he explains that he "filed a post-conviction petition in state court. It got denied by my judge. That means the appeals court will deny it too." (Doc. No. 8, Letter at 1.) Attached as an exhibit to that letter is an order of Judge Mary E. Hannon of the Tenth Judicial District of Minnesota denying several motions for relief filed by Nasseff in state court. ( See Doc. No. 8-1.) Nasseff previously had also filed documents in this matter relating to earlier state-court post-conviction motions. ( See Doc. Nos. 1-1 & 1-2.)
With Nasseff having now submitted his evidence of exhaustion, this matter is again before the Court for a preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Based on that review, this Court recommends that Nasseff's petition be denied without prejudice for failure to exhaust state remedies.
A federal court cannot entertain a habeas corpus petition filed by a state prisoner unless the prisoner has exhausted all available state court remedies for all of his claims. 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion of state court remedies requirement, the prisoner must show that all of his federal constitutional claims have been fairly presented to the highest available state court. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts... state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."). This requirement has been explained by the United States Supreme Court as follows:
Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations and quotations omitted). Although a state prisoner seeking federal habeas relief is not required to have spelled out every nuance of his federal constitutional claims to the state courts, if a claim is based on the federal constitution, the prisoner must "fairly present the facts and substance of his habeas claim to the state court." Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006); accord McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) ("Mere similarity between the state law claims and the federal habeas claims is insufficient: If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.'") (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam)).
I. Good Time Credit Claim is Not Exhausted
Nasseff has not provided any evidence that he has presented the claim relating to good-time credits to the Minnesota state courts. None of the state-court documents filed by Nasseff in this matter even mentions this claim. As best this Court can tell, Nasseff is raising this claim for the first time in his petition for habeas relief. Accordingly, this Court concludes that Nasseff has failed to exhaust state remedies with respect to this claim. See Baldwin, 541 U.S. at 29; O'Sullivan, 526 U.S. at 845.
II. Eighth Amendment Claim is Not Exhausted
Unlike Nasseff's claim with respect to good-time credits, Judge Hannon of the Tenth Judicial District addressed Nasseff's claim that his sentence violates the Eighth Amendment. ( See Doc. No. 1-2, March 4, 2013 Order by Judge Hannon, at 4-5 (concluding that Nasseff's claim that his 120-month sentence is unconstitutionally excessive could have been brought in his first petition for post-conviction relief, is barred by the Knaffla rule, and that even so, his claim fails on the merits because Nasseff agreed to an upward departure in his sentence).) Thus, although Nasseff has not submitted copies of the documents he filed in state court, it appears that Nasseff has presented this claim to the Minnesota district court. Nasseff, however, has not shown that this claim was ever presented to the Minnesota Court of Appeals or the Minnesota Supreme Court. Despite this Court's previous Order, Nasseff has not submitted appellate briefs or decisions demonstrating that he presented his Eighth Amendment claim to the Minnesota appellate courts. Moreover, this Court has not found any appellate decision from the Minnesota courts discussing this claim (or, for that matter, any other issue raised by Nasseff in connection with his criminal case). Without showing that he has presented this claim to the Minnesota Court of Appeals and the Minnesota Supreme Court in a manner that entitles him to a ruling on the merits, Nasseff ...