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Hicks v. Hammer

United States District Court, D. Minnesota

March 31, 2017

MO SAVOY HICKS, Petitioner,
v.
STEVE HAMMER, Respondent.

          Mo Savoy Hicks pro se.

          Jonathan C. Audette, Assistant Anoka County Attorney, for respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE GRANTING RESPONDENT'S MOTION TO DISMISS

          JOHN R. TUNHEIM Chief Judge United States District Court

         Petitioner 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.

         Respondent 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 dismiss.

         BACKGROUND

         After a 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.

         Hicks 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.[1] The Minnesota Court of Appeals affirmed the sentence on September 3, 2013. State v. Hicks, 837 N.W.2d 51 (Minn.Ct.App. 2013).

         Hicks 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”).[2]

         On June 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.)

         On 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.)

         The 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.)

         ANALYSIS

         I. ...


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