United States District Court, D. Minnesota
Wendell Anthony Greene, ID No. 242398, MCF-Moose Lake, 1000
Lake Shore Drive, Moose Lake, MN 55767, petitioner pro se
Rebekka L. Stumme, St. Louis County Attorney's Office,
counsel for respondent
REPORT AND RECOMMENDATION
KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE
jury trial in St. Louis County, the petitioner, Wendell
Greene, was convicted of three counts of criminal sexual
conduct involving two minor children, and he is serving a
lengthy prison sentence. Mr. Greene has filed a petition for
a writ of habeas corpus brought pursuant to 28 U.S.C. §
2254. He argues that: (1) he was denied effective assistance
of counsel because his trial attorney failed to bring a
motion to suppress statements that were made to a county
social worker without a Miranda warning; (2)
admission of the statements at trial violated his due process
rights; and (3) the trial court abused its discretion in
denying his post-conviction petition related to his
ineffective assistance of counsel claim without an
evidentiary hearing. For the reasons set forth below, the
Court recommends that Mr. Greene's habeas petition be
The State Court Proceedings
a jury trial, Mr. Greene was convicted of three counts of
criminal sexual conduct with two young girls. State v.
Greene, No. A14-0097, 2015 WL 7356545, at *1
(Minn.Ct.App. Nov. 23, 2015), review denied (Jan.
27, 2016). On June 9, 2012, one of the girls reported to her
mother that Mr. Greene had sexually abused her that day.
Id. Within a few days, the incident was reported to
social services. Id. On June 12, 2012, a Duluth
Police Department investigator interviewed both girls, who
described several instances of sexual misconduct involving
Mr. Greene. Id.
following day, investigators interviewed Mr. Greene.
Id. at *2. Two days later, Mr. Greene participated
in a recorded interview with Andrew Fena, a county social
worker in the Initial Intervention Unit, while in custody at
the St. Louis County jail. Id. Mr. Fena did not give
Mr. Greene a Miranda warning during the interview,
though he did inform Mr. Greene that he was under no
obligation to participate in or continue the discussion.
See Mem. in Supp. of Pet. for Post-Conviction Relief
(“Post-Conviction Mem.”) at 19, ECF No. 7-3. The
recording of their conversation was played during Mr.
Greene's trial. Transcript of Proceedings Jury Trial
Volume IV, at 94:5-164:23, ECF No. 7-24.
Greene was convicted of one count of criminal sexual conduct
in the first degree and two counts of criminal sexual
misconduct in the second degree. See Minn. Stat.
§§ 609.342, subd. 1(a), 609.343, subd. 1(a);
see also Warrant of Commitment, at 1-5, ECF No.
7-28. He was initially sentenced to three concurrent prison
terms, the longest of which was 216 months. Warrant of
Commitment at 2. He appealed his convictions and sentence to
the Minnesota Court of Appeals.
his direct appeal was pending, Mr. Greene sought
post-conviction relief on an ineffective assistance of
counsel claim. Mr. Green asserted that his trial counsel was
ineffective because he failed to object to the introduction
of Mr. Greene's un-Mirandized statement to Mr.
Fena. Post-Conviction Mem. at 1-11. The trial court summarily
rejected this claim, indicating that Mr. Greene had failed to
establish the prejudice prong of the two-part
Strickland test. Order (“Post-Conviction
Order”), at 1, ECF No. 7-5 (denying Mr. Greene's
post-conviction claim “[b]ased on the totality of the
evidence of [his] guilt, ” including the testimony of
the two child victims in his case and the testimony of a
child Spreigl witness).
Greene's direct appeal and his appeal of the
post-conviction decision were consolidated, and the Minnesota
Court of Appeals addressed issues related to both proceedings
in the same decision. Greene, 2015 WL 7356545, at *
3-6. As to his direct appeal, two of the three convictions
were affirmed and one was vacated. Id. at *3-5. Of
relevance to his federal habeas petition, Mr. Greene argued
that the post-conviction court had erred in denying his
ineffective assistance of counsel claim, and that at a
minimum he was entitled to a hearing on the issue.
See Appellant's Br. & Add. (“Ct. of
Appeals Br.”), at 34-47, ECF No. 7-7. The Minnesota
Court of Appeals held that the post-conviction court did not
err in its conclusion that Mr. Greene had failed to establish
his ineffective assistance of counsel claim, nor did the
post-conviction court abuse its discretion in summarily
denying his petition. Greene, 2015 WL 7356545, at
Petition for Review to the Minnesota Supreme Court, Mr.
Greene again challenged the post-conviction court's
order. See Pet. for Review (“PFR”), ECF
No. 7-10. Mr. Greene rearticulated his challenge as an
assertion about the merits of his underlying Miranda
claim, but the focus remained on the post-conviction
court's ineffective assistance of counsel determination.
See PFR at 11 (arguing that failure to raise the
Miranda claim at trial constituted ineffective
assistance of counsel). Mr. Greene also again argued that he
was entitled to an evidentiary hearing on the issue, and that
the post-conviction court had abused its discretion in
summarily denying his claim. PFR at 11. Mr. Greene's PFR
was summarily denied on January 27, 2016. ECF No. 7-11, at 1.
Greene was ultimately resentenced on the two remaining counts
of conviction, to 187 months imprisonment and a life term of
conditional release. Am. Warrant of Commitment, at 1-4, ECF
Federal Habeas ...