United States District Court, D. Minnesota
Benjamin J. Butler, Office of the Minnesota Appellate (for
R. Marker, Ramsey County Attorney's Office, (for
REPORT & RECOMMENDATION
N. Leung, United States Magistrate Judge.
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
FACTUAL & PROCEDURAL BACKGROUND
Underlying Criminal Proceedings
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.
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.) 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.
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. ¶
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.)
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).
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.
Post-Conviction & Appellate Proceedings
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.
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.)
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. ¶
finding that trial counsel's performance did not fall
below an objective standard of reasonableness, ...