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Nelson v. Halvorson

United States District Court, D. Minnesota

October 16, 2018

Leland Roland Nelson, II, Petitioner,
v.
Kathy Halvorson, Respondent.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         A. Trial and Conviction

         After a 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).

         Central 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.

Id.

         Nelson 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.

         B. Appeal and Post-Conviction Relief

         Nelson, 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.[1]) 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. No. 20-2.])

         The 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).

         Nelson 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].)

         Next, 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.)

         C. Instant Petition

         Nelson 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 ...


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