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Vann v. Smith

United States District Court, D. Minnesota

February 9, 2015

Jerome Eugene Vann, Petitioner,
Michelle Smith, Warden, Respondent.

Jerome Eugene Vann, #101086, MCF-Lino Lakes, 7525 4th Avenue, Lino Lakes, MN 55014-1099, pro se Plaintiff.

Peter R. Marker, Ramsey County Attorney's Office, 50 Kellogg Blvd West, Suite 315, St. Paul, MN 55102; Matthew Frank and Jennifer R. Coates, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101, on behalf of Defendant.



Before the undersigned United States District Court Judge are Petitioner Jerome Eugene Vann's Objections [Doc. No. 28] to the June 24, 2014 Report and Recommendation ("R&R") issued by Magistrate Judge Janie S. Mayeron [Doc. No. 27]. According to statute, the Court must conduct a de novo review of any portion of the magistrate judge's opinion to which specific objections are made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also Fed.R.Civ.P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review and for the reasons set forth, Petitioner's Objections are overruled, and the Court adopts the R&R in its entirety.


The factual and procedural background of Petitioner's case is well documented in the magistrate judge's R&R and is incorporated herein by reference.[1] Briefly stated, Petitioner is currently serving a 180-month sentence for a conviction of third and fourth degree sexual conduct involving his 22-year-old daughter "S.J." State v. Vann, No. A08-1000, 2009 WL 2431978, at *1 (Minn.Ct.App. Aug. 11, 2009) (hereinafter "Vann I"). Petitioner appealed his conviction to the Minnesota Court of Appeals, raising the following issues: (1) whether the district court erred in removing Vann from the courtroom for the remainder of his trial following an outburst during trial; (2) whether the district court should have ordered a competency evaluation to determine if Vann was able to assist in his defense; (3) whether the prosecutor committed misconduct by repeatedly stating to the jury during closing arguments that the jury could acquit Vann only if it found that S.J. was lying; (4) whether Vann's criminal history score was miscalculated; and (5) whether Vann was entitled to jail credit for time spent serving a contempt of court sentence. Id. at *2-6. Petitioner also submitted two pro se briefs, which the appellate court construed as raising claims of ineffective assistance of trial or appellate counsel. Id. at *6. Although the Minnesota Court of Appeals determined that Petitioner's sentence was based on an incorrect criminal history score and remanded the case for re-sentencing (id. at *1), it affirmed Petitioner's conviction on all other grounds. Id. at *6. The Supreme Court denied review on October 28, 2009. Id. at *1 (noting denial of review in case caption).

On remand, the trial court recalculated a lower criminal history score, but departed upward nonetheless, imposing the same 180-month sentence that it had originally imposed. State v. Vann, No. A09-1964, 2010 WL 3306898, at *1 (Minn.Ct.App. Aug. 24, 2010) (hereinafter Vann II")). The trial court based this upward departure on two aggravating factors, one of which was that Petitioner had a prior conviction involving injury to a victim. Id. at *1.

Petitioner appealed the remanded sentence to the Minnesota Court of Appeals, arguing pro se that his prior convictions for attempted murder and assault were more than ten years old and could not form the basis for the upward departure. Id. at *4-7. In addition, Vann argued that the trial court erred by imposing a ten-year term of conditional release without any factfinding by a sentencing jury in violation of Apprendi v. Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Id. at *7-8. The Minnesota Court of Appeals found that Petitioner's prior conviction involving injury to a victim was a valid basis for the sentencing departure. Id. at *4. Accordingly, the court upheld Vann's sentence and rejected Vann's pro se arguments related to "decayed" convictions and the ten-year conditional release period. Id. at *6-8.

Subsequently, Petitioner filed a pro se petition to the Minnesota Supreme Court for further review of Vann II, arguing that his Sixth and Fourteenth Amendment rights were violated when the trial court used a decayed conviction as an aggravating factor to support an upward departure in sentencing. (Pet. for Review, Resp't Ex. 4 [Doc. No. 20-1 at 38-45].) On November 16, 2010, the Minnesota Supreme Court denied review.

Petitioner filed a pro se petition for postconviction relief with the district court in December 2011. (Postconviction Pet., Resp't Ex. 5 [Doc. No. 20-1 at 57].) Vann raised the following issues in this petition: (1) because "reliable and credible DNA evidence" was not presented at trial, this demonstrated that Petitioner was actually innocent of the sexual assault, and therefore, his postconviction claims were not procedurally barred; (2) he received ineffective assistance of trial counsel in violation of the Fifth, Sixth, and Fourteenth Amendments when his counsel failed to disclose the DNA evidence to the jury; (3) in violation of his rights to due process and equal protection of the laws under the Fifth and Fourteenth Amendments, the prosecutor committed misconduct by using false testimony from S.J. to obtain a conviction when there was "reliable and credible DNA evidence" that negated the charge; (4) the trial court judge committed misconduct by failing to require that Petitioner undergo a mental competency exam in violation of his rights to due process under the Fourteenth Amendment; (5) the court lacked personal jurisdiction over him with respect to certain charges because of insufficient probable cause for his arrest; (6) the trial court lacked a "lawful basis" for its upward sentencing departure, in violation of the Due Process Clause of the Fifth and Fourteenth Amendments; (7) the trial court improperly applied the fifteen-year decay period, instead of the ten-year decay period, under which his prior conviction was fully decayed at the time of the offense in 2007; and (8) in violation of the Sixth and Fourteenth Amendments, he was denied due process and equal protection based on the trial court's imposition of a ten-year term of conditional release. (Id. at 70-86, 89-109.)

The district court denied the petition on March 29, 2012, finding that Vann's claims were procedurally barred. (See Vann v. Minn., Order of 12/20/12 at 3, Resp't Ex. 7 [Doc. No. 20-1 at 128]) (hereinafter "Vann III") (describing the basis of the district court's denial of Petitioner's postconviction petition).

Petitioner appealed the denial of postconviction relief to the Minnesota Court of Appeals, which affirmed the district court's order. (Id. at 126-130.) The court concluded that each of the issues raised in Petitioner's postconviction petition were considered and rejected in Vann I or Vann II. (Id. at 129].) A postconviction court "may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case." Christian v. Dingle, No. No. 06-CV-3056 (ADM/JSM), 2008 WL 2003089, at *10 (D. Minn. May 7, 2008) (quoting Minn. Stat. § 590.04, subd.3 (1998)). To the extent that Petitioner presented different variations of earlier arguments, the appellate court found them to be barred under State v. Knaffla, 243 N.W.2d 737 (Minn. 1976), "because they should have been known at the time of Vann's direct appeals." (Vann III, Resp't Ex. 7 [Doc. No. 20-1 at 129].) Specifically, the appellate court noted that the lack of DNA evidence was known at trial and was therefore not "newly discovered evidence" as Petitioner claimed. (Id. at 129-130.)

Petitioner then filed a pro se Petition for Review of the Court of Appeals' decision to the Minnesota Supreme Court. (Pet. for Review, Resp't Ex. 8 [Doc. No. 20-1 at 131].) Petitioner argued that: (1) he was denied due process because the lack of DNA evidence was newly discovered and "not known to the Petitioner"; (2) the district court committed reversible error by using an unauthorized prior conviction to increase his sentence; (3) the trial court violated the Ex Post Facto Clause when it applied the fifteen-year decay period regarding his 1984 conviction for assault and attempted murder; (4) the trial court erred in imposing a ten-year conditional release period, in violation of the Fifth, Sixth, and Fourteenth Amendments, his right to equal protection and due process, and Blakely and Apprendi; (5) his claims were not procedurally barred under Knaffla; and (6) the postconviction court should have held an evidentiary hearing on his petition. (Id. at 138-143.) The Minnesota Supreme Court denied review on February 7, 2013. (See Resp't Mem. at 5 [Doc. No. 19].)

On February 17, 2013, Petitioner filed his § 2254 Petition for a Writ of Habeas Corpus in this Court. (Pet. [Doc. No. 1].) Raising eleven grounds for relief, Petitioner asserts that the district court abused its discretion in denying his motion for postconviction relief based on the following grounds: (1) newly-discovered evidence (id. at 4); (2) actual innocence (id. at 5); (3) the denial of a mental competency examination (id. at 6); (4) ineffective assistance of counsel (id. at 8); (5) removing Petitioner from the courtroom during trial (id. at 9); (6) prosecutorial misconduct (id. at 10); (7) violating Petitioner's Fifth and Fourteenth Amendment rights based on judicial misconduct (id. at 12); (8) violating Petitioner's right to due process under the Fourteenth Amendment as to personal jurisdiction regarding the allegation of criminal sexual misconduct (id. at 13); (9) imposing an upward departure by erroneously applying a prior conviction in which the victim was injured as an aggravating factor (id. at 14); (10) misapplying the decay factors used for his criminal history scores (id. at 16); and (11) imposing a ten-year conditional release term, in violation of Apprendi and Blakely (id. at 17).

Petitioner also filed a supporting memorandum on February 18, 2013 [Doc. No. 2]. Respondent filed a Response [Doc. No. 19], to which Petitioner replied [Doc. No. 22].

On June 25, 2014, the magistrate judge issued the R&R, recommending that Petitioner's Petition be denied, the action be dismissed with prejudice, and the Petitioner not be granted a Certificate of Appealability. (R&R at 47 [Doc. No. 27].) Petitioner filed his Objections to the R&R [Doc. No. 28] on July 15, 2014, which this Order addresses.


A. Standard of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d), describes the standard for granting writs of habeas corpus made by persons in state custody:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (1)-(2).

Under the "contrary to" clause of § 2254(d)(1), a federal court may grant a habeas writ "if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" clause of § 2254(d)(1), a federal court may grant a habeas writ "if the state court identifies the correct governing legal principle from [the U.S. Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must also be "objectively unreasonable." Id. at 409 (emphasis added).

Additionally, "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). As noted by Magistrate Judge Mayeron, in conducting a habeas review, a district court may not reexamine state court determinations on state law questions, but the court is limited instead to "deciding whether a conviction violated the Constitution, laws or treaties of the United States." (R&R at 13 [Doc. No. 27]) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).

In this case, the magistrate judge found that none of Petitioner's grounds of relief succeed. Accordingly, she recommended the denial of his habeas corpus application and the dismissal of this action with prejudice. (See R&R at 47 [Doc. No. 27].) The Court addresses Petitioner's Objections to the R&R [Doc. No. 28] in the order in which he has raised them.[2]

B. Objections to the R&R

1. Fair Presentment, Exhaustion, and Procedural Default of Certain Claims

Petitioner objects to the magistrate judge's determination that he is barred from pursuing claims regarding DNA evidence and ineffective assistance of counsel because he failed to exhaust those claims in state court. (Pet'r Obj. at 4 [Doc. No. 28].)

As the magistrate judge observed, in presenting his federal claims in state court, a petitioner must have presented those claims so as to alert the state court to the federal nature of those claims. See 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)). In order for a federal claim to be fairly presented, "a petitioner is required to refer to a specific federal constitutional right, a particular constitutional provision, or a state case raising a pertinent federal constitutional issue. Presenting a claim that is merely ...

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