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Tate v. Titus

United States District Court, D. Minnesota

April 19, 2018

Deontray Vershon Tate, Petitioner,
v.
Jeff Titus, Warden, Rush City Correctional Facility, Respondent.

          Zachary A. Longsdorf, Esq., Longsdorf Law Firm, PLC, counsel for Petitioner.

          Brittany D. Lawonn, Esq., Assistant County Attorney, Hennepin County Attorney's Office, counsel for Respondent.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         In 2014, Petitioner Deontray Vershon Tate was convicted of two counts of first-degree assault and sentenced to 309 months imprisonment. (See Doc. No. 1, Habeas Pet.) Tate petitions for relief from this sentence under 28 U.S.C. § 2254. (See id.) For the reasons stated below, this Court recommends that the § 2254 petition be denied.

         I. Background

         Petitioner Tate was convicted of shooting Darnell Reed in his back and thigh, and also shooting a four-year-old child, known as J.B., in his right leg. See State v. Tate, No. A14-1339, 2016 WL 952444, at *1 (Minn.Ct.App. Mar. 14, 2016). The shooting occurred during the evening of June 25, 2013, at a residence at the intersection of 36th Street and Penn Avenue in Minneapolis. Id. J.B. is the son of Annie Davis, to whom Mr. Reed was engaged with at the time. (Doc. No. 14, Resp't's App. 530, 541.)

         Petitioner was charged with two counts of first-degree assault and one count of second-degree assault. Tate, 2016 WL 952444, at *2. The jury found him guilty of the first-degree offenses, and acquitted him of the second-degree charge. Id. The jury specifically found that J.B. was four years old and was in the back seat of the vehicle with the doors closed when the shooting occurred. Id. The jury also found that Petitioner shot Reed in the presence of children. Id. Thus, Petitioner's 309-month sentence included a double upward departure for the assault on J.B. based on victim vulnerability, and a consecutive sentence for the assault on Reed. Id.

         Petitioner appealed and moved for a stay so he could pursue postconviction remedies in the trial court. Tate, 2016 WL 952444, at *2. Petitioner's primary defense was that he was not the shooter, and he sought to present evidence that Davis and Reed had committed a prior armed home invasion to show they had enemies who could have committed the crime. Id. at *3. In his postconviction motion, Petitioner argued that he was denied his right to present a complete defense because the district court excluded evidence that Davis and Reed had participated in an armed home invasion four days before the shooting. Id. at *2. According to Petitioner, the victims of the home invasion and their acquaintances fit the general description of the person who shot Reed and J.B. Id. In the alternative, Petitioner argued that he received ineffective assistance of counsel because this evidence was not properly introduced in the district court. Id. The trial court rejected these arguments, Petitioner proceeded with his appeal, and the Minnesota Court of Appeals affirmed. Id. The court found that (1) the exclusion of evidence regarding Davis and Reed's participation in a home invasion did not deny Petitioner the right to present a complete defense; (2) sufficient evidence supports Petitioner's convictions; (3) the admission of testimony by a doctor that a gunshot wound is a serious injury was not plain error; (4) the prosecutor did not commit misconduct by stating that Davis and Reed were “from a different world”; and (5) the district court did not abuse its discretion by imposing an upward departure and consecutive sentences. Id. at *2-7. The Minnesota Supreme Court denied a petition review, and the United States Supreme Court denied a petition for certiorari on October 11, 2016. (Habeas Pet. 3.) This action was filed just under a year later, on October 10, 2017. (See id.)

         II. Analysis

         A. Standard of Review Under AEDPA

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas relief will not be granted with respect to any claim adjudicated on the merits in state court proceedings unless such adjudication 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, ” or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2); Davis v. Grandlienard, 828 F.3d 658, 664 (8th Cir. 2016). Under the “contrary to” clause of § 2254(d)(1), “a federal habeas court may grant the writ if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the “unreasonable application” clause, the writ can be granted “if the state court identifie[d] the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Id. at 413.

         “Clearly established Federal law” includes “only the holdings, as opposed to the dicta, of [Supreme Court] decisions.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). An “unreasonable application” of those holdings “must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)). To satisfy this high bar, a habeas petitioner is required to show that “the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “Adherence to these principles serves important interests of federalism and comity. AEDPA's requirements reflect a ‘presumption that state courts know and follow the law.'” Woods, 135 S.Ct. at 1376 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). On collateral review of state court convictions, “federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'” Id. (quoting Harrington, 562 U.S. at 102-03).

         B. The State Court's Ruling Was Not Contrary to, or an Unreasonable Application of, Clearly Established Federal Law

         Petitioner seeks habeas relief on the following grounds: (1) his due process right to present a complete defense was violated when he was precluded from presenting evidence that Anne Davis and Darnell Reed were involved in a violent armed home invasion four days prior to the shooting; (2) his trial counsel was ineffective for failing to make a complete offer of proof regarding the Davis and Reed violent armed home invasion; (3) his conviction for assaulting J.B. violated due process because there was insufficient evidence to satisfy all elements of that crime; and (4) the prosecutor violated due process by suggesting during closing argument that Davis and Reed were from a “different world.” (Habeas Pet. 4-12; see also Resp't's App. 800-03, 835.) Respondent argues that the state court's adjudication of these claims was not contrary to, or an unreasonable application of, clearly established federal law. (See Doc. No. 13, Resp't's Mem.)

         1. Right to Present a Complete Defense

         “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Under the Confrontation Clause, the right to present a complete defense includes “the opportunity for effective cross-examination of witnesses against him, including inquiry into the witnesses' motivation and bias.” United States v. Triplett, 104 F.3d 1074, 1079 (8th Cir. 1987). “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited in engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). This right is not unlimited, however, and a defendant is guaranteed only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). Trial judges “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679.

         Violations of this right are subject to a harmless error analysis. See Crane, 476 U.S. at 691 (citing Van Arsdall, 475 U.S. at 684); United States v. Stanford, 823 F.3d 814, 836 (5th Cir. 2016). Petitioner must show that the alleged error was prejudicial, meaning that it had a “substantial and injurious effect or influence in determining the jury's verdict.” Yang v. Roy, 743 F.3d 622, 626 (8th Cir. 2014) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that federal courts in § 2254 proceedings must “assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect' standard set forth in Brecht, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt' standard set forth in Chapman [v. California], 386 U.S. 18 (1967)”). Under Fry, courts “are not required to conduct a formal application of both the [AEDPA] and Brecht because the Brecht analysis ‘obviously subsumes the [AEDPA test].'” Toua Hong Chang v. Minnesota, 521 F.3d 828, 832 (8th Cir. 2008) (quoting Fry, 551 U.S. at 120).

         A “substantial and injurious effect” occurs when the court finds itself in “grave doubt” about the effect of the error on the jury's verdict. Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave doubt” exists where the issue of harmlessness is “so evenly balanced that the court feels itself in virtual equipoise as to the harmlessness of the error.” Id. Courts analyze the following factors to determine prejudice under this standard: (1) the overall strength of the prosecution's case; (2) the importance of the witness's testimony; (3) whether the testimony was cumulative; (4) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; and (5) the extent of cross-examination otherwise permitted. Yang, 743 F.3d at 628-29 (quoting Van Arsdall, 475 U.S. at 684); see also Jensen v. Romanowski, 590 F.3d 373, 379 (6th Cir. 2009) (“In determining whether a Confrontation Clause violation is harmless under Brecht, this Court has repeatedly referred to the factors laid out in [Van Arsdall].”).

         As noted above, Petitioner's primary defense was that he was not the shooter, and he sought to present evidence that Davis and Reed had committed a prior armed home invasion to show they had enemies who could have committed the crime. Tate, 2016 WL 952444, at *3. The Minnesota Court of Appeals upheld the exclusion of this evidence because it did not meet the standard under Minnesota law for the introduction of “alternative perpetrator” evidence. See Id. at *2 (explaining that “[a]lternative perpetrator evidence is admissible only if the defendant makes a threshold showing that the evidence the defendant seeks to admit has an inherent tendency to connect the alternative perpetrator to the commission of the charged crime”) (quoting State v. Ferguson, 804 N.W.2d 586, 591 (Minn. 2011)). Petitioner conceded he did not make this threshold showing, but argued that the evidence should have been admitted in any event to challenge the adequacy of the police investigation. Id. at *3 (“Tate concedes that the evidence was not sufficient to meet the alternative-perpetrator threshold, but argues that he should have been allowed to present it to challenge the adequacy of the police investigation.”). The court rejected this argument, reasoning that Petitioner “sought to offer alternative-perpetrator evidence under the guise of challenging law enforcement's investigation into alternative suspects, ” and “there was not sufficient evidence to connect the other people to the shooting.” Id. The court also noted the district court's ruling that the prior home invasion evidence could be referenced if used to impeach Davis's intrinsic testimony, or “under 608(b) as a prior act of dishonesty.” Id. Moreover, Sgt. Voss “was allowed to generally testify about events that occurred before the shooting, which showed [Davis] had potential enemies even though she had previously told Sgt. Voss that she was not ‘beefing' with anyone. On this record, we discern no abuse of discretion or resulting prejudice.” Id.

         Petitioner argues that even if he was unable to meet the standard to present evidence and testimony regarding the violent armed home invasion as alternate perpetrator evidence, he still should have been allowed to question Davis, Reed, and Sgt. Voss about that incident in an effort to show that the investigation leading to his arrest was incomplete because it was actively thwarted by Davis. (Doc. No. 16, Pet'r's Resp. Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus (“Pet'r's Mem.”) 17.) Petitioner complains that “all that defense counsel was able to elicit was that Davis had initially lied about not having any enemies or people that were mad at her, and that she had ‘earlier incidents' and ‘other incidents' with people.” (Id. at 20 (citing the trial transcript).) These “vague generalizations, ” according to Petitioner, are a “far cry” from the jury learning that Davis “failed to mention her involvement in a violent armed home invasion when asked to provide information that might lead to the arrest and conviction of her son's shooter.” (Id.) Petitioner argues, “[i]magine how much more powerful” his argument would have been if “he had been able to question Davis and Investigator Voss about this misdirection, and about an incident occurring just four (4) days before her son was shot.” (Id. at 22.)

         In support, Petitioner cites Alvarez v. Ercole, 763 F.3d 223 (2d Cir. 2014). The petitioner in Alvarez was convicted of one count of manslaughter and two counts of assault. See Id. at 225, 228. His defense strategy was to show that the police investigation had been incomplete in ways that created reasonable doubt about his guilt. Id. at 225. To support this argument, Alvarez sought to cross-examine the lead detective to show that the police had not investigated leads provided by a witness, Edwin Vasquez, whose tips were memorialized in a detective's notes and an investigative DD5 report. Id. The trial court did not allow this line of questioning on the grounds that it was impermissible hearsay and also that there was no “clear link” between evidence implicating a culpable third party and the defendant's charged crime. Id. at 228. On habeas review, the Second Circuit found that both of these rulings were erroneous under “standard rules of evidence concerning admissibility, ” id. at 231, and the “combined effect” of these rulings “entirely precluded Alvarez from fleshing out his main defense theory: that the police investigation into the murder was flawed and had improperly disregarded a promising alternate suspect.” Id. at 232. This “total exclusion of inquiry into the Vasquez DD5 was an ‘unreasonable ...


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