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Vang v. Roy

United States District Court, D. Minnesota

September 11, 2017

Aloeng Kelly Vang, Petitioner,
v.
Tom Roy, Minnesota Commissioner of Corrections, Respondent.

          Benjamin J. Butler, Office of the Minnesota Appellate (for Petitioner)

          Peter R. Marker, Ramsey County Attorney's Office, (for Respondent).

          REPORT & RECOMMENDATION

          Tony N. Leung, United States Magistrate Judge.

         I. INTRODUCTION

         This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Petitioner Aloeng Kelly Vang's Petition for Relief From a Conviction or Sentence by a Person in State Custody (“Petition”) (ECF No. 1) pursuant to 28 U.S.C. § 2254. Petitioner is represented by Assistant State Public Defender Benjamin J. Butler. Respondent Toy Roy is represented by Assistant Ramsey County Attorney Peter R. Marker. This action has been referred to the undersigned magistrate judge for a report and recommendation to the Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons set forth below, this Court recommends that the habeas petition be DENIED and this action be DISMISSED WITH PREJUDICE.

         II. FACTUAL & PROCEDURAL BACKGROUND

         A. Underlying Criminal Proceedings

         As stated by the Minnesota Supreme Court, “[t]he facts of . . . [Petitioner's] crime are not in dispute.” State v. Vang, 881 N.W.2d 551, 553 (Minn. 2016).

On September 1, 2013, between 12:30 a.m. and 1:00 a.m., Jeffrey Elling and his girlfriend, D.H., were crossing the street when [Petitioner] sped past them in his car. [Petitioner] parked his car in the driveway of his cousin, a neighbor of Elling's. Elling approached [Petitioner] and the two exchanged words. Elling pushed [Petitioner], who fell to the ground. Then Elling walked back to his house.
[Petitioner] was angry and frustrated about the encounter. He left his cousin's house, drove home, and retrieved a firearm from his garage. [Petitioner] then returned to Elling's house, rang the doorbell, and hid behind a tree. As Elling opened the front door, [Petitioner] fired two shots, one of which struck Elling in the neck. [Petitioner] fled the scene while Elling bled to death. [Petitioner] later returned to the scene, identified himself, and was arrested.

Id. at 553-54. Two days later, the State filed a complaint charging Petitioner with one count of second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (“caus[ing] the death of a human being with intent to effect the death of that person or another, but without premeditation”). Id. at 554. Petitioner pleaded not guilty. Id.

         After Petitioner entered his plea, Petitioner's trial counsel and prosecutors engaged in plea negotiations to see if a resolution could be reached without going to trial. (Post-Conviction Order at 2, ECF No. 1-2 at 6-11; see Aff. of Aloeng Kelly Vang ¶¶ 7-14, ECF No. 1-2 at 31-34; Aff. of Evan Tsai ¶¶ 4-5, 7-10, ECF No. 1-2 at 37-38; Oct. 22, 2013 Ltr. at 1, ECF No. 1-2 at 41; Nov. 4, 2013, Ltr. at 1, ECF No. 1-2 at 42; Jan. 27, 2014 Ltr. at 1-2, ECF No. 1-2 at 43-44.[1]) See Vang, 881 N.W.2d at 554. In October, Petitioner offered to plead guilty to second-degree intentional murder in exchange for a sentence within the presumptive sentencing range. Vang, 881 N.W.2d at 554. (See Oct. 22, 2013 Ltr. at 1.) The offer was rejected. Vang, 881 N.W.2d at 554. (See Nov. 4 Ltr. at 1.) At some point during the negotiations, one of the prosecutors suggested that the matter could be resolved if Petitioner would be willing to plead guilty to the complaint as charged and be sentenced to the statutory maximum of 480 months, or 40 years. (Post-Conviction Order at 2; Tsai Aff. ¶ 4.) In early January 2014, Petitioner offered to plead guilty under these terms. (Post-Conviction Order at 2; Tsai Aff. ¶ 7; Vang Aff. ¶ 11.) See Vang, 881 N.W.2d at 554.

         Prosecutors requested a chambers conference with the state district court, and one was held off the record on January 21. (Post-Conviction Order at 2.) Vang, 881 N.W.2d at 554. “During this conference, [the same prosecutor] indicated that the State would not accept the plea offer of [Petitioner] and that he was not authorized to provide notice to the defense regarding whether the State would be submitting . . . [the] matter to the grand jury or not.” (Post-Conviction Order at 2; see Tsai Aff. ¶ 9.) Accord Vang, 881 N.W.2d at 554. “The prosecutor suggested that [Petitioner's trial counsel] attempt to convince managing attorneys in the county attorney's office to accept [Petitioner's] most recent offer.” Vang, 881 N.W.2d at 554. (See Post-Conviction Order at 2-3; Tsai Aff. ¶ 9.)

         At or around this time, Petitioner's trial counsel informed Petitioner “that the prosecutor no longer wanted [him] to plead guilty to the charged offense even if [he] received the statutory maximum sentence.” (Vang Aff. ¶ 12.) Petitioner “emphasized to [his trial-counsel] how much [he] wanted to plead guilty to the charged offense” and “asked . . . if [he] could enter a plea without the prosecutor's agreement.” (Vang Aff. ¶ 13.) Petitioner's trial counsel informed him “that they would try to convince the prosecutor or his supervisor to accept a guilty plea to the charged offense.” (Vang Aff. ¶ 14.) On January 27, Petitioner's trial counsel sent a letter to the director of the criminal division, requesting consideration of “an alternative resolution to [Petitioner's] case which would avoid a sentence of life without the possibility of release.” (Jan. 27, 2014 Ltr. at 1; see Post-Conviction Order at 3.) Accord Vang, 881 N.W.2d at 554. “There was no response.” Vang, 881 N.W.2d at 554. (Accord Post-Conviction Order at 3.)

         At some point, the prosecutors knew that the county attorney had decided “to pursue a grand jury indictment of first-degree premediated murder.” (Post-Conviction Order at 3; see Aff. of Adam E. Petras ¶ 5, ECF No. 1-2 at 39-40.) “On February 12, . . . a grand jury indicted [Petitioner] on charges of first-degree premeditated murder and second-degree intentional murder.” Vang, 881 N.W.2d at 554; see Minn. R. Crim. P. 17.01, subd. 1 (“An offense punishable by life imprisonment must be prosecuted by indictment.”); see also Minn. Stat. § 609.185(a) (providing life imprisonment for first-degree murder).

         Petitioner proceeded to a bench trial. Vang, 881 N.W.2d at 554. Petitioner was convicted of both first-degree premeditated murder and second-degree intentional murder. Id. “As required by statute, [Petitioner] was sentenced to life imprisonment without the possibility of release on the first-degree count.” Id.

         B. Post-Conviction & Appellate Proceedings

         Petitioner's direct appeal to the Minnesota Supreme Court was stayed in order to allow him to pursue post-conviction relief in the state district court. Id. Petitioner timely filed a petition for post-conviction relief, asserting, in relevant part, that trial counsel was ineffective “because counsel did not schedule a plea hearing directly with the court, pursuant to Minn. R. Crim. P. 14.03(d), in order to allow [Petitioner] to plead guilty to second-degree intentional murder when it was the only charge pending against him.” Id. (See Post-Conviction Order at 4; see generally Pet'r's Pet. for Post-Conviction Relief & Mem. in Supp. of Pet. for Post-Conviction Relief, Ex. 3, ECF No. 9-1.) Petitioner argued that, “had a plea hearing been scheduled, he would have been able to enter a guilty plea in January 2014 and he would not have been indicted or convicted for premeditated murder.” (Post-Conviction Order at 4.) See Vang, 881 N.W.2d at 554.

         “The State countered that the prosecutors would have blocked any guilty plea by filing a complaint charging [Petitioner] with first-degree murder, see Minn. R. Crim. P. 17.01, subd. 1, or by dismissing the second-degree intentional murder complaint and recharging.” Vang, 881 N.W.2d at 554-55. (See generally Resp. to Pet. for Post-Conviction Relief, Ex. 4, ECF No. 9-1.) The State also acknowledged that, “to avoid the 14-day time limitation in Minn. R. Crim. P. 8.02, the Ramsey County Attorney's Office did not formally notify [P]etitioner and his [trial] counsel (by filing a complaint or otherwise) of its intention to present first-degree murder charges to a grand jury.” Vang, 881 N.W.2d at 555 (quotation omitted). (See Resp. to Pet. for Post-Conviction Relief at 2.)

         The state district court denied summarily the petition for post-conviction relief, concluding that trial counsel's performance did not fall below an objective standard of reasonableness and there was no indication that, but for trial counsel's alleged errors, the outcome of Petitioner's case would have been different. Vang, 881 N.W.2d at 555. (See Post-Conviction Order at 4-6.) The state district court found that, if Petitioner's trial counsel “had attempted to schedule a plea hearing, the State would have blocked the plea by either dismissing the second-degree intentional murder charge or by filing a complaint for first-degree premeditated murder.” Vang, 881 N.W.2d at 555. (See Post-Conviction Order at 4; Petras Aff. ¶ 6.)

         In finding that trial counsel's performance did not fall below an objective standard of reasonableness, ...


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