United States District Court, D. Minnesota
Zakaria Abinasser Yusuf, Petitioner, pro se.
Michael Richardson, Esq. Hennepin County Attorney's
Office, counsel for Respondent.
REPORT AND RECOMMENDATION
R. THORSON, United States Magistrate Judge.
Zakaria Abinasser Yusuf has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1,
Pet.) After a jury trial, Petitioner was acquitted of
attempted first-degree premeditated murder, but convicted of
attempted second-degree intentional murder, first-degree
assault, second-degree assault, and possession of a weapon by
a prohibited person. See State v. Yusuf, No.
A14-1454, 2015 WL 4393390, at *1-2 (Minn.Ct.App. 2015).
Petitioner was sentenced to 219 months in prison.
Id. at *2. The Minnesota Court of Appeals affirmed,
and the Minnesota Supreme Court denied review. See
alleges four claims in his petition: (1) the victim
identified Petitioner in an unconstitutionally suggestive
lineup; (2) the denial of Petitioner's motion to exclude
hearsay statements and photographic lineup evidence
implicating Petitioner as the shooter was based on an
unreasonable determination of the facts; (3) the rejection of
Petitioner's insufficiency-of-the-evidence claim is
contrary to federal law; and (4) the prosecutor knowingly
used perjured testimony to obtain a conviction. (Pet. 5-10.)
The first three claims were raised on direct appeal in state
court, but the last claim was not. (Pet. 10-12.) Accordingly,
Petitioner asks to stay this case while he pursues his
unexhausted claim in state court. (Id. at 15.) The
Respondent does not oppose a stay. (Doc. No. 7.) This Court
recommends that the stay request be granted.
district courts “may not adjudicate mixed petitions for
habeas corpus, that is, petitions containing both exhausted
and unexhausted claims.” Rhines v. Weber, 544
U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S.
509 (1982)). District courts can, however, utilize a
“stay-and-abeyance” procedure. Id.
“Under this procedure, rather than dismiss the mixed
petition . . ., a district court might stay the petition and
hold it in abeyance while the petitioner returns to state
court to exhaust his previously unexhausted claims. Once the
petitioner exhausts his state remedies, the district court
will lift the stay and allow the petitioner to proceed in
federal court.” Id. at 275-76. This procedure
arose as a way to deal with the “interplay between
AEDPA's 1-year statute of limitations and
Lundy's dismissal requirement, ” whereby
“petitioners who come to federal court with
‘mixed' petitions run the risk of forever losing
their opportunity for any federal review of their unexhausted
claims.” Id. at 275.
Supreme Court in Rhines cautioned that this
procedure, “if employed too frequently, has the
potential to undermine” the “twin purposes”
of AEDPA to “reduce delays in the execution of state
and federal criminal sentences” and to
“encourage petitioners to seek relief from state
courts in the first instance by tolling the 1-year
limitations period while a ‘properly filed application
for State post-conviction or other collateral review' is
pending.” Id. at 276 (quoting 28 U.S.C. §
2244(d)(2)). Thus, the Court instructed that the procedure
should only be used if “the petitioner had good cause
for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278.
justifies his failure to exhaust by stating that he recently
obtained the information needed to support his unexhausted
claim, and the factual predicate for the claim is newly
discovered. (Pet. 10.) Courts have found good cause under
Rhines where the unexhausted claims arise out of
newly-discovered evidence. See Zornes v. Smith, Case
No. 16-cv-1730-PJS-KMM, 2016 WL 6650852, at *8 (D. Minn. Oct.
17, 2016) (collecting cases). There is no indication, so far
as this Court can ascertain, that Petitioner has engaged in
dilatory tactics. See Id. at *9 (observing that the
“Supreme Court's primary concern in Rhines
was with dilatory behavior to delay execution in capital
cases, and the Court noted that a non-capital petitioner will
ordinarily have an incentive to obtain speedy relief”)
(citing Rhines, 544 U.S. at 278).
the potential merits, Petitioner's unexhausted claim
appears to be a Fifth Amendment due process claim similar to
that raised in Napue v. Illinois, 360 U.S. 264
(1959), Giglio v. United States, 405 U.S. 150
(1972), and their progeny. These cases “stand for the
proposition that the government may not allow perjured
testimony at trial to stand uncorrected if there is a
reasonable chance that the testimony could have affected the
jury's judgment.” Thomas v. Houston, No.
4:11CV3161, 2013 WL 3766539, at *9 (D. Neb. July 16, 2013);
see also United States v. Dickerson, 248 F.3d 1036,
1041 (11th Cir. 2001) (“A successful Giglio
challenge requires that the defendant establish that the
prosecutor ‘knowingly used perjured testimony, or
failed to correct what he subsequently learned was false
testimony, ' and that the falsehood was material.”)
(internal citation omitted). “To establish a due
process violation based on the prosecutorial use of false
testimony, a defendant must show that ‘(1) the
prosecution used perjured testimony; (2) the prosecution
should have known or actually knew of the perjury; and (3)
there was a reasonable likelihood that the perjured testimony
could have affected the jury's verdict.'”
United States v. Bass, 478 F.3d 948, 951 (8th Cir.
2007) (quoting United States v. Funchess, 422 F.3d
698, 701 (8th Cir. 2005)).
Petitioner's case, an officer testified at trial that he
spoke with the victim at the hospital on the night of the
shooting, and the victim “told him that he was standing
in front of a store when two men approached him. One of the
men, who [the victim] knew as T-Dot,  produced a gun and shot
[the victim.] The officer testified that [the victim]
definitely said T-Dot, and not T-Dawg.” Yusuf,
2015 WL 4393390, at *5. A sergeant also testified that he
spoke with the victim at the hospital following the shooting,
who told the sergeant that he had known “T-Dot”
for four months. Id. at *6. The following day, the
sergeant spoke with the victim and showed him a photo lineup.
Id. The victim “picked out appellant's
picture without hesitation and stated ‘That's the
guy who shot me; that's T-Dot.'” Id.
The victim testified that “the officers misunderstood
what he said, and that someone named T-Dawg actually shot
him.” Yusuf, 2015 WL 4393390 at *6. Petitioner
now argues, however, that the victim told the prosecutor that
he “did not actually see the person who shot
him.” (Pet. 10.) Instead, according to Petitioner,
[the victim] learned who the shooter may have been while . .
. at the hospital the day after the shooting. When it was
relayed to him who might have committed the shooting offense,
he thought the individual said it was ‘T-Dot' that
shot him, so that's why he mentioned the name T-Dot to
the Sergeant that interviewed him at the hospital. Because he
was on some pain reliever medication, he misheard and
confused the name ‘T-Dawg' with T-Dot. Based on the
circumstances, he gave the Sergeant the name T-Dot instead of
the name T-Dawg that was relayed to him to be the shooter. At
the time of the incident, [the victim] knew of Petitioner but
Petitioner and him did not have an issue with each other.
(Pet. 10.) Since the jury apparently relied on the
victim's identification of Petitioner as the shooter,
Petitioner's claim that the victim never saw the shooter
is potentially meritorious under Napue,
Giglio, and their progeny. Therefore, a
Rhines stay is appropriate.
cautioned that “[e]ven where stay and abeyance is
appropriate, the district court's discretion in
structuring the stay is limited by the timeliness concerns
reflected in AEDPA. A mixed petition should not be stayed
indefinitely.” 544 U.S. at 277. Instead, district
courts “should place reasonable time limits on a
petitioner's trip to state court and back.”
Id. at 278. Therefore, Petitioner should be required
to pursue his unexhausted claim in state court within thirty
days, and then return to federal court thirty days after
state court exhaustion is completed. See id.