United States District Court, D. Minnesota
Savoy Hicks pro se.
Jonathan C. Audette, Assistant Anoka County Attorney, for
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE GRANTING
RESPONDENT'S MOTION TO DISMISS
R. TUNHEIM Chief Judge United States District Court
Mo Savoy Hicks seeks federal review of his 420-month
aggravated sentence for Second-Degree Unintentional Felony
Murder pursuant to Minn. Stat. § 609.19, subd. 2(1)
(2014). After Hicks directly appealed the basis for the
aggravated sentence under the state sentencing guidelines,
both the Minnesota Court of Appeals and the Minnesota Supreme
Court affirmed the sentence. Hicks subsequently filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, asserting that the imposition of the aggravated
sentence violated his due process and equal protection rights
under the Fifth and Fourteenth Amendments.
Steve Hammer (“Respondent”) moves to dismiss
Hicks' petition, arguing that Hicks failed to present a
federal claim in state court. United States Magistrate Judge
Hildy Bowbeer issued a report and recommendation
(“R&R”) recommending dismissal of Hicks'
petition. Hicks now objects to the R&R. Because the Court
finds that Hicks failed to present a federal claim to the
state court, the Court will overrule Hicks' objections,
adopt the R&R, and grant Respondent's motion to
bench trial, on February 17, 2012, the Anoka County District
Court convicted Hicks on one count of Second-Degree
Unintentional Felony Murder. (Pet. for Relief from Conviction
or Sentence (“Pet.”) at 17, June 6, 2016, Docket
No. 1.) Hicks represented himself during sentencing and
waived his Sixth Amendment right, as established in
Blakely v. Washington, 542 U.S. 296 (2004), to a
jury determination of facts supporting an aggravated
sentence. (Id. at 18.) The state court sentenced
Hicks to a 420-month term of imprisonment, which included an
upward durational departure, resulting in a sentence 168
months longer than the presumptive sentence. (Id. at
17); State v. Hicks, 864 N.W.2d 153, 156 (Minn.
2015). The departure was based on the state court's
factual finding that Hicks concealed the victim's body,
which the sentencing court determined was an indicator that
the crime was carried out with “particular
cruelty” - an aggravating factor under Minnesota's
sentencing guidelines. (Pet. at 18); Hicks, 864
N.W.2d at 156.
appealed his sentence to the Minnesota Court of Appeals,
arguing that concealment of a body alone does not justify a
finding that a crime was particularly cruel under applicable
precedent and also that concealment of a body alone cannot
justify an upward departure because it is a separate
uncharged offense. The Minnesota Court of Appeals affirmed
the sentence on September 3, 2013. State v. Hicks,
837 N.W.2d 51 (Minn.Ct.App. 2013).
filed a petition for review with the Minnesota Supreme Court,
which agreed to review the propriety of the aggravated
sentence based solely on the finding that Hicks concealed the
body. The Minnesota Supreme Court affirmed on June 3, 2015,
holding that “concealment of a homicide victim's
body, in and of itself, may be an aggravating factor under
the [state] sentencing guidelines that supports an upward
durational sentencing departure.” Hicks, 864
N.W.2d at 159. Hicks amounted to a slight change in
state law, abrogating the existing precedent set in State
v. Schmit, 329 N.W.2d 56, 58 n.1 (Minn. 1983) (finding
that concealment of the victim's body did not operate as
an aggravating factor in sentencing because the
“defendant made no effort to bargain with information
concerning the location of the body”).
6, 2016, Hicks filed a federal habeas petition pursuant to 28
U.S.C. § 2254 seeking review of his aggravated sentence.
In the petition, Hicks presents one ground for relief: that
he “was denied his 5th and 14th
Amendment rights to Due Process/Equal Protection.”
(Pet. at 18.) More specifically, Hicks alleges “[t]he
Minnesota Supreme Court violated Hicks['] right to due
process when it arbitrarily and discriminatorily overruled
precedent set by previous case law to affirm Hicks'
upward departure.” (Id.)
August 15, 2016, Respondent filed a motion to dismiss
Hicks' petition. Respondent argues the petition should be
dismissed because Hicks did not present a federal claim to
the state court regarding the propriety of his aggravated
sentence. (Resp't's Mem. of Law in Supp. of Mot. to
Dismiss at 1, Aug. 15, 2016, Docket No. 9.) Hicks responded
that he did present a federal claim in state court because
his brief to the Minnesota Supreme Court cited
Blakely, a federal constitutional case.
(Pet'r's Obj. to Resp't's Mot. to Dismiss at
2, Sept. 19, 2016, Docket No. 16.)
Magistrate Judge issued an R&R on January 19, 2017,
recommending dismissal of Hicks' petition. (R&R, Jan.
19, 2017, Docket No. 17.) The Magistrate Judge found that
Hicks did not present due process or equal protection claims
to the state courts, nor did Hicks present a Blakely
claim, and therefore these claims are procedurally defaulted.
(Id. at 4, 7.) The Magistrate Judge further
concluded that Hicks failed to demonstrate a basis for the
Court to overlook the procedural default because Hicks did
not show cause for the default, actual prejudice, or that a
miscarriage of justice would occur if the Court did not
address the merits of the claims, (id. at 6-7), as
would be required for the Court to review the merits of
Hicks' claim despite the procedural default, see
McCall v. Benson, 114 F.3d 754, 757 (8th Cir.
1997). Hicks filed objections to the R&R on February 6,
2017. (Pet'r's Obj. to R&R (“Obj.”),
Feb. 6, 2017, Docket No. 18.)