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Fenstermaker v. Halvorson

United States District Court, D. Minnesota

August 22, 2017

Russell J. Fenstermaker, Petitioner,
Kathy Halvorson, Warden, MCF-Faribault, Respondent.

          Roy G. Spurbeck, Minnesota State Public Defender, for Petitioner.

          James B. Early, Matthew Frank, Minnesota Attorney General and James P. Spencer, Olmstead County Attorney for Respondent.




         This matter is before the undersigned United States District Judge for consideration of Petitioner Russell Fenstermaker's Objections [Doc. No. 13] to United States Magistrate Judge Becky R. Thorson's Report and Recommendation (“R&R”), dated March 17, 2017 [Doc. No. 11]. The magistrate judge recommended that Fenstermaker's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus by a Person in State Custody [Doc. No. 1] (“Habeas Pet.”) be denied, and the action be dismissed.

         Pursuant to statute, this Court reviews de novo any portion of the magistrate judge's opinion to which specific objections are made, and “may accept, reject, or modify, in whole or in part, the findings or recommendations” contained in that opinion. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b)(3). Based on that de novo review, and for the reasons set forth herein, the Court overrules Petitioner's objections and adopts the R&R in its entirety.


         The facts relevant to this matter have been thoroughly set forth in the magistrate judge's R&R, and are not challenged by either party. (See R&R at 2-6.) Accordingly, the Court will incorporate the background section of the R&R by reference here, and briefly set forth only those facts necessary to provide context for its discussion of Fenstermaker's objections.[1]

         In early 2012, the State of Minnesota brought criminal charges against Fenstermaker for first-degree and third-degree criminal sexual assault stemming from an alleged sexual relationship Fenstermaker entered into with his step-daughter. (See R&R at 2-3.) Trial commenced on November 14, 2012, and after a full day of voir dire, a jury of twelve and two alternates were selected and sworn. (See R&R at 3.) Opening arguments were scheduled to begin on November 16, 2012, but those plans were derailed when the assigned prosecutor was suddenly incapacitated with a back injury. (See id.) The judge accordingly ordered trial continued until the following Monday-November 19.

         However, when court resumed, the assigned prosecutor's condition had still not improved sufficiently to allow her to conduct trial. (See id.) As the State informed the court, the prosecutor's pain level was such that she would not be able to concentrate on the proceedings, and the pain medication she was on had a tendency to impair her mental faculties. (See Id. at 3-4.) According to the State, no substitute prosecutor had time to adequately prepare to take over the trial, and, equally importantly, doing so would mean that the State would lose the benefit of the rapport that the prosecutor had developed with witnesses and the jurors. (See Id. at 4.) Although the State suggested that there was “manifest necessity” warranting a mistrial, it suggested alternatively continuing the trial until the following week. (See id.) Defense counsel did not object to a continuance, but did object to a declaration of a mistrial. (See id.)

         The district court ultimately decided to declare a mistrial, stating as follows:

First of all, this jury's time of service ends this week, which is Wednesday of this week because of the Thanksgiving holiday. We did look at my calendar for next week, and I have matters that need to be attended to next week that are not jury trial related, so it creates some scheduling difficulties. I'm reasonably certain those could be overcome, but it strikes me that a mistrial should be granted, and I guess I would take [the state's] comments as a motion to declare a mistrial. The court was prepared in the absence of such a motion to declare a mistrial sua sponte for a couple of reasons: Number one, those enumerated by the state I think are valid. [The assigned prosecutor] is an experienced trial lawyer. She handles these types of cases. She has established rapport with the alleged victim and the alleged victim's family and also established rapport with the 14 jurors who have been sworn, and I think given the nature of this particular case, and the seriousness of it, that to require the state to have somebody simply jump in at this stage and try the case would not be fair to the State of Minnesota. I would take the same position if something had happened to [defense counsel]. I don't think that either one of those circumstances would be fair, given the nature of these alleged offenses and also the significant punishment that's attendant to any conviction.
I think the high degree standard relative to the manifest necessity is satisfied in this case because [the assigned prosecutor's] back issue arose unexpectedly and suddenly, and she is simply unable to continue, and as I indicated, I think under the circumstances it is virtually impossible for another prosecutor to conduct the trial in this matter, and as I already indicated, I think the ...

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