United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Leland Roland
Nelson, II's (“Nelson”), Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (“Petition”) [Doc. No. 1]. For the
reasons set forth below, the Court recommends that the
Petition be denied.
Trial and Conviction
jury trial, Nelson was convicted and sentenced on January 27,
2014, on two counts of first-degree sexual conduct in
violation of Minnesota Statutes § 609.342 subdiv. 1(a).
(Pet. at 1); (Resp's Mem. in Opp'n to Pet. for Writ
of Habeas Corpus, “Mem. in Opp'n” [Doc. No.
19 at 1]); see also State v. Nelson, No. A14-0700,
2015 WL 4507668, at *1 (Minn.Ct.App. July 27, 2015).
to Nelson's conviction was the use of recorded testimony
by his two victims, S.L. and C.L.-ages six and four,
respectively. See Nelson, 2015 WL 4507668, at *1-4.
The trial court allowed the presentation of the recorded
testimony of S.L. and C.L. so long as the children could also
testify live, pursuant to Minnesota Statutes § 595.02,
subdiv. 3. Id. at *1. During their respective live
testimony, the children acted their age and were easily
distracted or otherwise responded vaguely to the
prosecutors' questions. Id. at *2. The
prosecutors did not keep either witness on the stand long and
Nelson's attorney did not cross-examine them.
Id. Nevertheless, the trial court allowed the
recorded testimony to be played for the jury which included
the children's statements that Nelson forced them to
touch him inappropriately. Id. at *1-2. In addition,
the children's father was also allowed to testify about
statements that S.L. made to him about her encounters with
Nelson. Id. at *2.
Nelson's attorney initially objected just to the
admission of statements S.L. made to her father, arguing that
they were hearsay. The state responded that it planned to lay
the foundation to admit the girl's statements as excited
utterances. The district court reserved its ruling and told
the defense to object when the state actually asked Larson
for S.L.'s statements. But Nelson's attorney never
objected after the question was asked or after Larson
testified to S.L.'s statements.
never testified in his own defense. Id. The trial
judge, however, allowed a sheriff's deputy to testify
regarding an interview he conduction with Nelson at the time
of the investigation. Id. On direct examination, the
witness stated that Nelson
denied that [the conduct] happened. At that point I became
very direct with Mr. Nelson, and I told him that I did
believe it happened. I told him that I believed the children
were telling the truth and that he needed to talk about it,
enable himself to get some help and help these children to
deal with what happened.
Id. Nelson's attorney did not object to this
line of questioning. Id.
Appeal and Post-Conviction Relief
with the aid of counsel, timely filed a direct appeal of his
conviction with the Minnesota Court of Appeals. See
(Ex. 1 [Doc. No. 20-1]); see also (Mem. in Opp'n
at 2.) In the brief filed by his attorney, Nelson raised two
issues on appeal: (1) whether the district court erred under
Minnesota Statutes § 595.02 subdiv. 3 when it allowed
S.L's out of court statements to be admitted given
S.L.'s “unavailability” at trial; and (2)
whether the district court erred by admitting S.L.'s
hearsay statement made to her father and by admitting the
sheriff's deputy statements regarding the credibility of
the children's accounts. See, e.g., (Ex. 1 at 2,
9, 15-31.) In addition to the brief submitted by
counsel, Nelson also submitted a pro se brief in which he
asserted the additional issue that he received ineffective
assistance from his trial counsel. See (Ex. 2 [Doc.
Minnesota Court of Appeals issued its decision on July 27,
2015, affirming Nelson's conviction. See generally
Nelson, 2015 WL 4507668. In considering Nelson's
arguments regarding the inadmissibility of the statements
made by S.L., C.L., S.L.'s father, and the sheriff's
deputy, the court of appeals conducted a plain-error analysis
under State v. Griller, 583 N.W.2d 736, 740
(Minn.1998), because Nelson did not object to the admission
of the testimony at trial. See Id. at *3-5.
Conducting this analysis pursuant to Minnesota law, the court
of appeals concluded that none of the alleged errors
constituted plain error. See Id. The Minnesota Court
of Appeals deemed Nelson's ineffective assistance of
counsel argument waived on appeal because he failed to
“specify how his defense counsel's performance was
deficient or how the deficient performance prejudiced the
defense” as required by Minnesota law. Id. at
*6 (internal quotation marks omitted).
filed a petition for review with the Minnesota Supreme Court
on August 26, 2015, (Ex. 5 [Doc. No. 20-5 at 11].) The
petition for review raised the same issues argued in
Nelson's counsel's brief before the Minnesota Court
of Appeals. See generally (Ex. 5.) Nelson did not
file a pro se submission with the petition for review. The
Minnesota Supreme Court denied Nelson's petition for
review on October 20, 2015. (Ex. 7 [Doc. No. 20-7].)
Nelson filed a pro se petition for post-conviction relief
pursuant to Minnesota Statutes § 590.01 subdiv. 1 on
December 9, 2015. See (Ex. 8 [Doc. No. 20-8].)
Nelson asserted seven grounds in his request for
post-conviction relief: (1) violations of his “rights
of Due Process”; (2) courthouse interviews resulted in
obstruction of justice; (3) misconduct by public officials
was withheld from the court; (4) violations of his equal
protection rights under the Fourteenth Amendment; (5)
prosecutorial misconduct in the manner in which certain
statements were presented during opening and closing
statements; (6) denial of effective assistance of counsel
“before, during, and after trial”; and (7) that
“the evidence was not sufficient to support the
convictions.” (Id. at 2.) Nelson's
petition was denied on April 11, 2016, premised primarily on
procedural grounds that Nelson could have raised the issues
raised in his petition for post-conviction relief at the time
of his direct appeal and he failed to raise them on direct
appeal. See (Ex. 10 [Doc. No. 20-10] at 7-8.) Nelson
appealed the post-conviction court's determination.
See (Ex. 11 [Doc. No. 20-11.]) The Minnesota Court
of Appeals affirmed the post-conviction court's
determination under State v. Knaffla, 243 N.W.2d
737, 741 (Minn. 1976). See (Ex. 13 [Doc. No.
20-13].) Nelson did not seek review of the court of
appeal's decision by the Minnesota Supreme Court.
See (Pet. at 5-9); (Mem. in Opp'n at 5.)
now seeks habeas review alleging three grounds of relief: (1)
violations of the Sixth Amendment of the U.S. Constitution;
(2) violations of the Fifth Amendment of the U.S.
Constitution; and (3) violations of ...