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Brown v. Smith

United States District Court, D. Minnesota

November 4, 2016

Donovan Dejuan Brown, Petitioner,
v.
Michelle Smith, Respondent.

          Donovan Dejuan Brown, pro se

          James B. Early and Matthew Frank, Minnesota Attorney General's Office, nd Peter R. Marker, Assistant Ramsey County Attorney, MN 55102, for Michelle Smith

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, United States Magistrate Judge

          This matter is before the Court on the State of Minnesota's Motion to Dismiss [Doc. No. 17] the amended petition for writ of habeas corpus filed by Donovan Dejuan Brown (Am. Pet. [Doc. No. 12].) The Court also addresses Petitioner's non-dispositive motions in this Report and Recommendation: Motion to Stay Habeas Corpus Proceedings on Remand to the State Courts for Exhaustion [Doc. No. 21]; Renewed Motion for the Appointment of Counsel [Doc. No. 24]; Motion to Accept Nonconforming Appeal Papers [Doc. No. 25]; Motion to Stay Motion for the Appointment of Counsel and Remand to the State Court for Exhaustion and Relief [Doc. No. 28]; and Motion Requesting Extension of Time to File Postconviction Petition, Brief and Motions with the Minnesota Court Of Appeals [Doc. No. 30].

         Petitioner is incarcerated at the Minnesota Correctional Facility in Oak Park Heights, Minnesota, and filed his habeas petition pursuant to 28 U.S.C. § 2254. The motion to dismiss has been referred to this Court pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1 for the issuance of a report and recommendation. For the reasons set forth below, the Court recommends that the motion to dismiss be granted, the petition be dismissed, and no certificate of appealability be granted. Furthermore, nothing in Petitioner's motions would affect the Court's recommendation, and thus the Court recommends that Petitioner's motions be denied as moot.

         I. Background

         On April 28, 2009, a jury convicted Petitioner of second-degree attempted murder; first-, second-, and third-degree assault; and four counts of terroristic threats deriving from an assault with a box cutter on his estranged wife in the presence of three children. Brown v. State, No. A11-1308, 2012 WL 1253095, at *1 (Minn.Ct.App. April 16, 2012). On April 29, 2009, Petitioner was sentenced to twenty years for the attempted second-degree murder conviction and three consecutive one-year-and-one-day sentences for the convictions of terroristic threats against the children. (Am. Pet. at 1[1].) Petitioner voluntarily dismissed direct appeal proceedings on May 7, 2010, following the submission of parties' briefs. (See App. Resp't's Mem. Supp. Mot. Dismiss (Dismissal Order, dated May 7, 2010) [Doc. No. 19].)

         On April 27, 2011, 354 days following Petitioner's voluntary dismissal of direct appeal, Petitioner filed a motion for postconviction relief in Ramsey County District Court. (See App. Resp't's Mem. Supp. Mot. Dismiss (Filing Letter, dated Apr. 27, 2011).) Petitioner asserted that he was entitled to postconviction relief because: (1) the state failed to provide sufficient evidence to support the terroristic-threats convictions; (2) the district court erred by submitting to the jury a first-degree assault charge as a lesser-included offense of second-degree attempted murder; (3) the district court committed plain error by not instructing the jury on first-degree heat-of-passion manslaughter; and (4) at least six of eight aggravating factors were invalid or improper to support an upward sentencing departure and the departure was “tainted by judicial bias and inappropriate personal hostility.” Brown, 2012 WL 1253095 at *1. The state district court denied the postconviction motion on June 13, 2011. Brown v. State, 2011 WL 9378007 (Minn. Dist. Ct. June 13, 2011). Petitioner appealed to the Minnesota Court of Appeals, which issued an opinion affirming the lower court decision on April 16, 2012. Brown, 2012 WL 1253095 at *9. Petitioner's petition for review to the Minnesota Supreme Court was denied on June 27, 2012. (See App. Resp't's Mem. Supp. Mot. Dismiss (Order Denying Review).)

         Petitioner filed a second motion for postconviction relief in Ramsey County District Court on January 19, 2016. (Am. Pet. at 4.) According to Petitioner's amended habeas petition, Petitioner argued in that motion that (1) he was denied the effective assistance of trial counsel; (2) he was denied the effective assistance of appellate counsel; (3) prosecutorial misconduct; and (4) he was denied counsel without making a knowing and intelligent wavier of his Sixth Amendment right to counsel. (Am. Pet. at 4.) The postconviction court denied the motion in an order dated March 22, 2016. (Am. Pet. at 4.)

         Petitioner filed the instant petition in federal court on May 9, 2016. On June 24, 2016, the undersigned issued an order directing Respondent to file either a written answer to the petition or a motion to dismiss the petition [Doc. No. 16]. Respondent filed a motion to dismiss the petition on July 22, 2016, asserting Petitioner's claims are time-barred under 28 U.S.C. § 2244(d)(1)(D) [Doc. No. 17]. Respondent notes that more than one year has passed between the date on which Petitioner's postconviction petition for review to the Minnesota Supreme Court was denied and the date he filed his federal habeas petition. (Resp't's Mem. Supp. Mot. Dismiss at 3 [Doc. No. 18].) Petitioner did not file a response to Respondent's motion within the thirty days allowed and has not explained why his claims are timely under 28 U.S.C. § 2244(d).

         II. Discussion

         The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year statute of limitations for “an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The one-year period of limitations begins on the latest of four possible events:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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