United States District Court, D. Minnesota
R. Welch, Welch Law Firm, LLC, (for Petitioner); and
R. Kelley, Anoka County Attorney's Office, (for
REPORT AND RECOMMENDATION
E. RAU, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Petitioner Elizabeth Mary
Hawes's Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (“Federal
Habeas Petition”). (ECF No. 8). This matter was
referred to the Court pursuant to 28 U.S.C. § 636(b) and
District of Minnesota Local Rule 72.1. For the reasons stated
below, the Court recommends denying the Petition.
Trial Court and Direct Appeal
was charged with aiding and abetting in the first-degree
premeditated murder of her brother, Edwin, in 2008. State
of Minnesota v. Hawes, 801 N.W.2d 659, 662 (Minn. 2011).
The State argued that Hawes helped her other brother Andrew
murder Edwin; and Hawes claimed that Andrew killed Edwin
without her assistance. Id. Hawes, who demanded a
speedy trial, went to trial before Andrew and was found
guilty. Id. at 667-68. Hawes moved for a new trial
on the grounds of newly available evidence-an affidavit from
Andrew stating he would waive his Fifth Amendment right
against self-incrimination and testify that Hawes had nothing
to do with Edwin's murder. Id. at 667-68. The
district court denied the motion because Hawes knew of this
testimony at the time of trial. Id. at 668. Hawes
was sentenced to life in prison without the possibility of
directly appealed to the Minnesota Supreme Court and
presented three arguments. She first argued the evidence was
insufficient to sustain her conviction because the
State's case was wholly circumstantial and there was no
evidence she encouraged Andrew to act. Id. at 673.
The Minnesota Supreme Court held that while the evidence was
circumstantial, Hawes aiding Andrew in Edwin's murder was
“the only reasonable hypothesis supported by the
circumstances . . . in their entirety, ” and thus the
evidence was sufficient to show that Hawes aided and abetted
in Edwin's murder. Id. at 672-73. Second, Hawes
argued the district court erred in preventing her from
testifying about Andrew's out-of-court statements.
Id. at 674. The court held that any alleged error
was harmless because the fact “[t]hat Andrew murdered
Edwin was not in dispute at Hawes trial; the question was
whether Hawes aided and abetted Andrew in committing the
murder.” Id. at 674-75. Third, Hawes argued
the district court erred in denying her motion for a new
trial on the grounds of new evidence. Id. at 675.
The supreme court held the district court did not err because
Hawes knew of Andrew's expected testimony at the time of
trial and thus affirmed her conviction on August 24, 2011.
Id. at 659.
four years later, on July 10, 2015, Hawes sought
postconviction relief in Scott County District Court. (ECF
No. 14, Ex. 5). Hawes, acting pro se, claimed
ineffective assistance of counsel because her counsel failed
to introduce Andrew's out of court and post-trial
statements about Hawes's involvement in the crime.
(Id.). Hawes claimed this alleged ineffective
assistance resulted in constitutional due process violations,
and that her imprisonment constituted cruel and unusual
punishment due to the incarceration of an innocent person.
(Id.). Hawes further claimed the trial court erred
in suppressing Andrew's out of court statements and in
denying her motion for a new trial. (Id.). The
respondents moved for dismissal because Hawes's claims
did not entitle her to relief. (ECF No. 14, Ex. 6). The
postconviction court noted Hawes did not raise “any
challenges to jurisdiction or the lawfulness of her executed
sentence, and there is nothing in the record to support any
such claims.” (ECF No. 14, Ex. 7). Hawes's
postconviction relief was denied. (ECF No. 14, Ex. 7).
appealed the dismissal of her postconviction petition to the
Minnesota Court of Appeals. (ECF No. 14, Ex. 8). The court
held Hawes's claim was legally insufficient. (ECF No. 14,
Ex. 9). The court stated Hawes “merely challenges the
sufficiency of the evidence with respect to her underlying
conviction, a challenge she previously raised in a motion for
a new trial.” (Id.). The court also found
Hawes's counsel “failed for reasons of law and not
inadequate representation” as Hawes's “claim
of ineffective assistance of counsel is based on
disappointment that her posttrial motion and appeal
failed.” (Id.). The court of appeals affirmed
the district court's motion to dismiss. (Id.).
2, 2016, Hawes mailed “an appeal of habeas
corpus” to the Minnesota Supreme Court, which was not
accepted for failure to comply with with Minn. R. Civ. App.
P. 117. (ECF No. 14, Exs. 10, 15). Hawes then filed a motion
for an extension of time to file a late petition for review,
which was also denied. (ECF No. 14, Exs. 14-15).
next filed a postconviction petition with the Anoka County
District Court on May 12, 2016. (ECF No. 14, Ex. 11). Hawes
asked for a reversal of her conviction, a new trial, or a
reduction in her sentence because having her trial before
Andrew's restricted her from presenting her full case to
the jury. (Id.) The district court dismissed her
petition without a hearing on May 23, 2016. (ECF No. 14, Ex.
13). The court stated Hawes was not entitled to an
evidentiary hearing because it was untimely, the court had
already ruled on the issue of whether Hawes was entitled to a
new trial based on Andrew's affidavit, the court's
decision to deny a new trial was affirmed by the Minnesota
Supreme Court, and Hawes's ineffective assistance of
counsel claims were known at the time of her direct appeal to
the Minnesota Supreme Court. (ECF No. 7, Ex. U).
Federal Habeas Petition
filed the instant writ of habeas corpus in this Court on
December 22, 2017. (ECF No. 8). Hawes argues: (1) she has
exhausted her state court remedies; (2) she should be allowed
to appeal her conviction despite the expiration of the
one-year statute of limitations because she can establish her
innocence; (3) there was ineffective assistance of trial and
appellate counsel; (4) the Minnesota Supreme Court's
decision that exclusion of Hawes's testimony as harmless
error was objectively unreasonable; and (5) the
postconviction court was objectively unreasonable in holding
the trial court did not violate Hawes's Sixth Amendment
rights by denying her motion for a new trial. (ECF No. 5).
STANDARD OF REVIEW
habeas corpus review of a state criminal conviction is
available only for claims involving federal constitutional
issues.” Carney v. Fabian, 441 F.Supp.2d 1014,
1022 (D. Minn. 2006), aff'd, 487 F.3d 1094 (8th
Cir. 2007). That is, “it is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62,
federal district court may entertain a state prisoner's
application for a writ of habeas corpus only when the
petitioner has exhausted state court remedies. 28 U.S.C.
§ 2254(b); O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); Gill v. Swanson, Civ. No. 07-4555
(JMR/AJB), 2008 WL 4371378, at *2-3 (D. ...