United States District Court, D. Minnesota
Jon Brothers, OID # 244407, Minnesota Correctional
Facility-Faribault, 1101 Linden Lane, Faribault, MN, 55021,
petitioner pro se
B. DeVos, Blue Earth County Attorney's Office, P.O. Box
3129, Mankato, MN 56002, counsel for respondent
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge
matter is before the Court on Petitioner Kelly Jon
Brothers's Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254. Pet., ECF No. 1. In his petition,
Mr. Brothers challenges his state court conviction for
first-degree criminal sexual conduct, arguing that his due
process rights were violated because there was insufficient
evidence that the victim did not freely consent to the sexual
conduct underlying his conviction. Id. For the
reasons discussed below, the Court recommends that Mr.
Brothers's petition be denied.
conviction underlying this petition is from a state court
proceeding in Minnesota. Mr. Brothers was charged with
second-degree assault with a dangerous weapon, terroristic
threats, first-degree criminal sexual conduct, false
imprisonment, domestic assault by strangulation, and
third-degree criminal sexual conduct. State v.
Brothers, A14-1771, 2015 WL 6829679, at *1 (Minn.App.
Nov. 9, 2015). The jury acquitted Mr. Brothers of
third-degree criminal sexual conduct and domestic assault by
strangulation, but found him guilty of all remaining charges.
Id., at *2. The jury also used a separate special
verdict form to find that Mr. Brothers tortured the victim
during the commission of the crimes, but that he did not
inflict more injury than necessary to commit the crimes.
Id. After concluding that Mr. Brothers committed
criminal sexual conduct “by force or violence, ”
the court imposed consecutive sentences for each crime for
which Mr. Brothers was convicted. Id. He was
sentenced to a total of 306 months in prison. Id.
appeal to the Minnesota Court of Appeals, Mr. Brothers argued
that the state failed to prove that the victim did not freely
consent to the sexual conduct. Resp.'s App. § B at
18, ECF No. 7-2. Specifically, Mr. Brothers asserted that
state violated the Due Process Clause by failing to
adequately prove lack of consent, an element for conviction
under the relevant state statute. Id. Mr. Brothers
also argued that the district court erred by allowing expert
testimony on counterintuitive and submissive behaviors of
sexual assault victims, and by imposing multiple sentences
for crimes arising out of the same behavioral incident.
Id. at 22, 30.
court of appeals affirmed the first-degree
criminal-sexual-conduct conviction, finding sufficient
evidence to support the jury's conclusion that the victim
did not freely consent. Brothers, 2015 WL 6829679,
at *3. In considering Mr. Brothers's challenge, the court
conducted a “painstaking analysis of the record”
to determine whether the evidence, when viewed in the light
most favorable to the conviction, was sufficient to support
the jury's verdict. Id., at *3. The court noted
the victim's trial testimony that she did not want to
have sex with Mr. Brothers and that she was “willing to
do anything to … get out of the situation.”
Id. She further stated that she did not consent to
anything that happened while she was imprisoned. Id.
The court acknowledged that by the time the victim initiated
sexual contact, she had been held against her will and had
been subjected to Mr. Brothers's “bizarre and
frightening behavior” for several hours. Id.
The court ultimately concluded that the issue of whether
consent was freely given was a fact question for the jury.
Id. Given the circumstances, there was sufficient
evidence to support the jury's finding. Id.
court of appeals also affirmed the admission of the expert
testimony on sexual assault victims' behavior, but
reversed the district court's imposition of multiple
sentences. Id., at *2-4. In reversing the multiple
sentences imposed, the court of appeals reasoned that the
record did not support the district court's finding that
Mr. Brothers committed the crime of first-degree criminal
sexual conduct with force or violence. Id., at 4.
The case was remanded, and Mr. Brothers was resentenced to
201 months in prison. Resp.'s Mem. at 2, ECF No. 6 Mr.
Brothers appealed to the Minnesota Supreme Court, but his
petition for further review was denied in January 2016. Pet.
at 2; Resp.'s Mem. at 2. In the instant petition, Mr.
Brothers essentially raises one of the claims that he
presented to the Minnesota Court of Appeals. He asserts that
his criminal-sexual-conduct conviction violated the Due
Process Clause because the victim initiated the sexual
conduct and the state failed to present evidence that the
victim withdrew that consent. Pet. at 6; see also
Brothers, 2015 WL 6829679, at *1.
district court may grant habeas relief to a state prisoner
who is in “custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The Anti-Terrorism and Effective Death
Penalty Act (AEDPA) limits habeas review to adjudications
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
Id. § 2254(d). A state court's decision is
“contrary to” clearly established Supreme Court
precedent when it “arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law or
if the state court decides a case different than [the
Supreme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362,
412-13 (2000). A state court's decision constitutes an
“unreasonable application” of Supreme Court
precedent when it “identifies the correct ...