United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Jeffrey J. Keyes United States Magistrate Judge.
This matter is before the Court, Magistrate Judge Jeffrey J. Keyes, on a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Petitioner Joseph Gustafson (“Petitioner” or “Gustafson”) is a prisoner confined at the Minnesota Correctional Facility at Faribault, Minnesota, as the result of his conviction and sentencing in Hennepin County District Court. He was found guilty by a jury on a charge of racketeering, as well as independent predicate offenses of aiding and abetting kidnapping, aiding and abetting second-degree assault, and aiding and abetting first-degree arson. He was sentenced to a term of 180-months imprisonment. The action has been referred to this Court for report and recommendation to the District Court under 28 U.S.C. § 636 and Local Rule 72.2.
The Petitioner alleges that the evidence presented at trial was insufficient to prove guilt beyond a reasonable doubt because accomplice testimony was not corroborated; two of the predicate offenses occurred simultaneously and should be construed as one offense; and the predicate aiding and abetting offenses were not shown by proof of Petitioner’s actual knowledge of the offenses. Petitioner also alleges improper admission of prejudicial character evidence and ineffective assistance of trial counsel. For the reasons stated below this Court recommends that the Petition (Doc. No. 1) be dismissed with prejudice.
I. Background and Claims
Petitioner was charged in June 2011 with racketeering,  aiding and abetting kidnapping, aiding and abetting terroristic threats, aiding and abetting aggravated first-degree robbery, conspiracy to commit first-degree murder, aiding and abetting attempted first-degree murder, and aiding and abetting first-degree arson. The charges arose out of Petitioner’s activities with a group identified as the “Beat-Down Posse” (“BDP”), which was led by the Petitioner and his son. Members of the BDP were suspected of involvement in robberies, assault, kidnappings, weapons trafficking, narcotics trafficking, and arson, which activities were facilitated through a bail bond company that was owned and operated by Petitioner.
Several BDP members or their associates testified at Petitioner’s jury trial in January 2012, implicating Petitioner and his bail bond company in BDP’s criminal activities. In particular, testimony was provided with respect to the kidnapping and assault of an individual identified as J.K. in September 2008, and the arson of a house on Girard Ave. in April 2006. Testimony was also provided regarding Petitioner’s involvement in the aggravated robbery of a person identified as C.L. in April 2008.
Prior to the case being given to the jury for deliberations, the complaint was amended to delete the aiding and abetting terroristic threats and aiding and abetting aggravated robbery charges, and adding a count of aiding and abetting second-degree assault. The jury was presented with seven possible predicate acts for purposes of the racketeering charge, some of which were not separately charged offenses. The jury found, beyond a reasonable doubt, that Petitioner committed the four predicate acts of aiding and abetting kidnapping, aiding and abetting second-degree assault, aiding and abetting first-degree arson, and accessory after the fact to aggravated robbery. These findings satisfied Minnesota’s racketeering statute’s requirement of three or more criminal acts establishing a pattern of criminal activity. Minn. Stat. § 609.902, subd. 6. On the basis of the predicate acts Petitioner was convicted and sentenced on the racketeering charge, as well as the independent kidnapping, second-degree assault and first-degree arson offenses. The jury found that Petitioner was not guilty of conspiracy to commit first-degree murder, aiding and abetting attempted first-degree murder, and aiding and abetting first-degree burglary.
On the conviction for racketeering the district court sentenced Petitioner to 180 months imprisonment. On the independent counts the court sentenced Petitioner to 81 months for aiding and abetting arson, a consecutive 21 months for aiding and abetting second-degree assault, and an additional consecutive sentence of 48 months for aiding and abetting kidnapping. The sentences on the predicate aiding and abetting offenses run concurrent with the 180-month racketeering term. ((Doc. No. 14) Resp. Mem. 2.)
Minnesota Court of Appeals Decision.
Petitioner’s convictions were affirmed on appeal to the Minnesota Court of Appeals, State v. Gustafson, 2013 WL 1705029 (Minn.App. April 22, 2013), and the Minnesota Supreme Court denied review. The Court of Appeals held that accomplice testimony as to charges of aiding and abetting kidnapping and aiding an abetting second-degree assault were sufficiently corroborated to support the convictions on each of those charges. The court also held that the two charges were not so closely related that they could not constitute separate predicate acts for purposes of the racketeering offense. Further, the Court of Appeals found accomplice testimony on the aiding and abetting first-degree arson charge to be adequately corroborated, and the uncharged predicate act of accessory after the fact to aggravated robbery to have been proven by sufficient evidence to sustain the jury’s determination. With respect to claims that the district court erred in admitting improper character evidence, the Court of Appeals found no error as to testimony suggesting that Gustafson was racist or was associated with the Hell’s Angels, and that allowance of testimony regarding a witness’s placement in a witness-protection program and a witness’s statement that Gustafson was a very dangerous man were in error, but did not affect the outcome of the case. Finally, the Court of Appeals simply stated without further discussion that claims asserted in Gustafson’s pro se appellate brief, including a claim of ineffective assistance of counsel, had no merit. Respondent does not contend that Petitioner has not exhausted his state court remedies.
Petitioner describes the current Petition as containing three main grounds for relief which are summarized as follows: (1) the convictions were based on insufficient evidence and his sentence was improper under Blakely v. Washington, 542 U.S. 296 (2004); (2) he was denied a fair trial due to the cumulative effect of judicial bias as reflected in certain trial rulings and sentencing, seating a biased juror, and frequent references by the prosecutor to defendant’s bad character and prior bad acts; and (3) ineffective assistance of trial counsel. ((Doc. No. 2) Pet. Mem. 1-2.).
II. Legal Standards
A. AEDPA Standard
Habeas relief is available to a state prisoner if “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Anti–Terrorism and Effective Death Penalty Act (AEDPA) limits habeas review to adjudications that:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the ...