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Rossberg v. Miles

United States District Court, D. Minnesota

October 24, 2017

Keith Richard Rossberg, Petitioner,
v.
Warden Eddie Miles, Respondent.

          REPORT AND RECOMMENDATION

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         The above-captioned case comes before the undersigned on Petitioner Keith Richard Rossberg's (“Rossberg”) Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Habeas Petition”) [Doc. No. 1] and Respondent Warden Eddie Miles's (the “State”) Motion to Dismiss Petition for Writ of Habeas Corpus (“Motion to Dismiss”) [Doc. No. 9]. This matter has been referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b) and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court recommends the Motion to Dismiss be granted, the Habeas Petition be denied, and this case be dismissed.

         I.BACKGROUND

         A. Background in State Court

         Following a jury trial, Rossberg was convicted of the first-degree premediated murder of Devan Hawkinson (“Hawkinson”). State v. Rossberg, 851 N.W.2d 609, 614-15 (Minn. 2014) [hereinafter Rossberg I]. Rossberg was sentenced to life in prison without the possibility of release. Id. at 615. Rossberg appealed, and the Minnesota Supreme Court affirmed his conviction. Id. at 612. In particular, the Minnesota Supreme Court agreed that the state district court erred in admitting Spreigl evidence but found that the error did not entitle Rossberg to a new trial “because there [was] no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”[1] Id. at 616 (internal quotation marks omitted). The Minnesota Supreme Court also found that the state district court erred in admitting testimony regarding Hawkinson's fear of Rossberg, but determined that error was harmless. Id. at 619. The Minnesota Supreme Court rejected Rossberg's remaining arguments. See Id. at 615-20. Rossberg did not petition the United States Supreme Court for review. See (Habeas Pet. at 3).[2]

         On June 4, 2015, Rossberg filed his Petition for Postconviction Relief (“Postconviction Petition”), which was assigned to the Honorable Elizabeth Strand, the same state district court judge who presided over Rossberg's trial. See (Ex. 6, Attached to App.) [Doc. No. 11-6]; (Register of Actions, Ex. 15, Attached to App.) [Doc. No. 11-15 at 294];[3] see Rossberg v. State, 874 N.W.2d 786, 789 (Minn. 2016) [hereinafter Rossberg II]. Rossberg's Postconviction Petition acknowledged that it was submitted “without factual support” in order to toll the one-year statute of limitations for federal writs of habeas corpus. (Postconviction Pet. at 159-60). At the same time, Rossberg moved the court to allow him sixty days to file an addendum because he was unable to obtain sufficient time in the prison law library “to research his issues and to find the appropriate case law.” (Postconviction Pet. at 160-61). Judge Strand denied the Postconviction Petition. (Order, Ex. 10, Attached to App.) [Doc. No. 11-10]. Judge Strand found that all of Rossberg's claims-with one exception-could have or were raised before the Minnesota Supreme Court and therefore postconviction review was not warranted. (Id. at 182). Although Rossberg's claim of ineffective assistance of appellate counsel could not have been addressed on direct appeal, Judge Strand concluded Rossberg was not entitled to an evidentiary hearing on that claim because he did not show that “[a]ppellate [c]ounsel's performance was not objectively reasonable, and . . . but for [a]pellate [c]ounsel's errors, the result of the direct appeal would have been different. (Id.). Rossberg's motion to file an addendum was also denied. Rossberg II, 874 N.W.2d at 789. Following Judge Strand's decision on his Postconviction Petition, Rossberg filed a motion to disqualify her because she presided over Rossberg's trial and because she “work[ed] . . . with the [district attorney]'s office assisting in the investigation and charging [Rossberg] with [Hawkinson's] murder.” Id. (internal quotation marks omitted) (alterations in original). Judge Strand denied the motion because “Rossberg's allegations regarding her former employment were factually incorrect.” Id.

         The Minnesota Supreme Court affirmed upon appeal. See generally Id. Although the Minnesota Supreme Court found Judge Strand erred in not referring the disqualification motion to the chief judge, the error was harmless. Id. at 790. The Minnesota Supreme Court also found that Judge Strand did not abuse her discretion in denying Rossberg's Postconviction Petition and motion for additional time to file an addendum. Id. at 790-91.

         B. Background in Federal Court

         Rossberg filed his federal Habeas Petition on March 1, 2017.[4] Rossberg seeks release based on a number of errors: (1) he was unlawfully detained on a firearms charge during the murder investigation; (2) ineffective assistance of trial and appellate counsel; (3) Judge Strand was biased against him; (4) the trial court erred in admitting hearsay, character, and prior bad acts evidence; (5) he was erroneously denied the right to file a petition for postconviction relief; and (6) prosecutorial misconduct. (Habeas Pet. at 5-9); (Mem. in Supp. for Writ of Habeas Corpus) [Doc. No. 2 at 5-30].[5]

         The State moved to dismiss, arguing Rossberg's Habeas Petition was untimely and his claims were procedurally defaulted. See (Mem. in Supp. of Mot. to Dismiss) [Doc. No. 10]. Rossberg responded to the Motion to Dismiss, and the matter is now ripe for adjudication. See (Pet'r's Resp. to Resp't's Opp'n to Habeas Corpus Relief, “Rossberg's Mem. in Opp'n”) [Doc. No. 13].

         The Court concludes that Rossberg's Habeas Petition is untimely.

         II. DISCUSSION

         A. Legal Standard

         A federal court may review an application for a writ of habeas corpus filed on behalf of an individual under the judgment of a state court if the applicant “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established that a state prisoner must file for the writ of habeas corpus within one year from the latest of the following dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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