United States District Court, D. Minnesota
Andrew M. Irlbeck, for Petitioner.
David E. Schauer, Sibley County Attorney, and Matthew Frank and James B. Early, Minnesota Attorney General's Office, for Respondent.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the undersigned United States District Court Judge for consideration of Petitioner Kevin David Jones's Objections [Doc. No. 20] to United States Magistrate Judge Hildy Bowbeer's November 10, 2014 Report and Recommendation [Doc. No. 19]. The Magistrate Judge recommended that Respondent's Motion to Dismiss be granted, Petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody be dismissed, and a certificate of appealability not be granted. (Report and Recommendation dated Nov. 10, 2014 [Doc. No. 19] ("R&R") at 19.) For the reasons set forth below, the Court adopts the Report and Recommendation.
The factual and procedural background of Petitioner's case is well documented in the Magistrate Judge's Report and Recommendation ("R&R") and is incorporated herein by reference. Briefly stated, Petitioner pleaded guilty on April 13, 2009 to one count of firstdegree criminal sexual conduct and one count of violating a restraining order, and he was sentenced on June 17, 2009 to 144 months in prison. See Minnesota v. Jones, No. A09-1659, 2010 WL 3220041, at *1 (Minn.Ct.App. Aug. 17, 2010) (hereinafter Jones I); (Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [Doc. No. 1] ("Pet.") at 1). On appeal to the Minnesota Court of Appeals, Petitioner argued that the district court abused its discretion by denying his motion for a downward departure. See Jones I, 2010 WL 3220041, at *1. The Minnesota Court of Appeals affirmed the district court's decision on August 17, 2010, and the Minnesota Supreme Court denied review on December 14, 2010. See id. Petitioner did not seek review of his direct appeal in the U.S. Supreme Court. (Pet. at 3.)
On November 9, 2011, Petitioner filed a motion for postconviction relief in the state district court. (Id.) He challenged his sentence on the basis that he received ineffective assistance of counsel because his trial counsel failed to communicate a plea offer that would have resulted in a shorter sentence. Jones v. Minnesota, No. A12-0792, 2013 WL 656475, at *1 (Minn.Ct.App. Feb. 25, 2013) (hereinafter Jones II). He also argued that his counsel failed to hire an investigator or investigate the facts of the case, failed to give Petitioner access to discovery or file pretrial motions, and failed to discuss Petitioner's version of the facts and Petitioner's testimony with Petitioner. (Pet. at 3.) The district court denied Petitioner's motion on March 6, 2012, (id.), and the Minnesota Court of Appeals affirmed the district court's decision on February 25, 2013, see Jones II, 2013 WL 656475, at *1. The Minnesota Supreme Court denied review on May 21, 2013. See id.
Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ("Habeas Petition") in this Court on May 23, 2014. The Habeas Petition includes three grounds for relief: (1) Petitioner received ineffective assistance of counsel because his trial counsel failed to inform Petitioner of a plea offer, (Pet. at 5); (2) Petitioner's due process and Sixth Amendment rights were violated because his trial counsel failed to hire an investigator or investigate the facts of the case, failed to give Petitioner access to discovery or file pretrial motions, and failed to ask or allow Petitioner to tell his version of the facts, (id. at 7); and (3) Petitioner's due process and Sixth Amendment rights were violated because his trial counsel lied at a postconviction evidentiary hearing about whether he and Petitioner had discussed the facts of the case and the plea offer, (id. at 9-10). Petitioner claims that he raised Grounds 1 and 2 on both direct appeal and in his motion for postconviction relief, (see id. at 6-7), but that he did not raise Ground 3 because he "was told by counsel this could not be addressed, " (id. at 11). In regard to the statute of limitations, Petitioner stated: "I should be right at the 1 yr mark. [Postconviction counsel] has promised me he was going to prepare my Habeas for me for the last 11½ months. He notified me on May 12th he was unable to do it." (Id. at 15.) The Habeas Petition is dated May 18, 2014, and Petitioner verified under penalty of perjury that it was placed in the prison mailing system that same day. (Id. at 17.)
On June 3, 2014, the Magistrate Judge issued an Order (the "June 3 Order") stating that there was "reason to be concerned about the timeliness of this action, that is, whether the current petition was filed within the one-year statute of limitations prescribed by 28 U.S.C. § 2244(d)(1)." (Order dated May 29, 2014 [Doc. No. 3] at 1-2.) The Court stated that Respondent would be permitted to raise a statute-of-limitations defense by filing a motion to dismiss "in lieu of a comprehensive answer addressing Petitioner's claims on the merits." (Id. at 2.) However, if Respondent opted not to file a motion to dismiss, Respondent was ordered to file an answer demonstrating why a writ should not be granted. (Id.)
Respondent filed its Motion to Dismiss on June 13, arguing that the Habeas Petition is time-barred under 28 U.S.C. § 2244(d)(1). (Mot. to Dismiss [Doc. No. 6] at 1.) According to Respondent, more than one year had passed from the time judgment became final by the conclusion of direct review and the day the Habeas Petition was filed. (Id.) Respondent argued that, although Petitioner allegedly did not learn of the plea offer until the summer of 2011, he had fully litigated his claims related to not knowing of the offer in his motion for postconviction relief, so there was no reason for his noncompliance with the statute of limitations. (See id. at 1-2.)
Through new counsel, Petitioner filed an opposition memorandum [Doc. No. 15] and two declarations [Doc. Nos. 16-17]. Petitioner argued that, under Respondent's calculation, the Habeas Petition was timely pursuant to the prison-mailbox rule because it was placed in the prison mail system three days before the expiration of the limitations period. (See Pet'r Resp. in Opp. to Mot. to Dismiss [Doc. No. 15] at 8-10.) Petitioner also noted that it was not clear whether Respondent would expressly waive the exhaustion requirement in its answer and, therefore, requested that the Court refrain from dismissing the Habeas Petition under the total-exhaustion rule. (See id. at 10-12.)
The Magistrate Judge issued her R&R on November 10, recommending that Respondent's Motion to Dismiss be granted, the Habeas Petition be denied, and a certificate of appealability not be granted. (R&R at 19.) The Magistrate Judge reasoned that: (1) the limitations period for Grounds 1 and 2 began running on March 15, 2011 (the expiration of the time for seeking the U.S. Supreme Court's discretionary review of Petitioner's direct appeal), was tolled from November 9, 2011 (when Petitioner filed his motion for postconviction relief) until May 21, 2013 (when the Minnesota Supreme Court denied review of his postconviction appeal), and ultimately expired on September 23, 2013, eight months before the Habeas Petition was filed,  (see id. at 7-10, 13-15); (2) the doctrine of equitable tolling does not apply to toll the limitations period for Ground 1 or Ground 2, (see id. at 11-12, 15); (3) Ground 3 is procedurally defaulted, and Petitioner has demonstrated neither cause for the default and actual prejudice, nor that a miscarriage of justice would occur if the Court does not address the merits of Ground 3, (see id. at 15-18), and (4) a ...