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Amen El v. Roy

United States District Court, D. Minnesota

January 16, 2019

Pharaoh El-Forever Amen El, Petitioner,
v.
Tom Roy, Respondent.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner Pharaoh El-Forever Amen El's Motion to Stay in Abeyance [Doc. No. 2]. This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court recommends denying the motion.

         I. BACKGROUND

         On November 3, 2015, Amen El was convicted of murder in the second-degree. See (Exs. [Doc. No. 21-2 at 777].[1]). Amen El appealed his conviction to the Minnesota Court of Appeals, which affirmed the conviction, and petitioned the Minnesota Supreme Court for review, which was denied. See (id. at 793-886, 888-94, 907.) Before the Minnesota Court of Appeals, Amen El argued that the trial court erred when it allowed the state to introduce certain DNA evidence. See (id. at 804-17.) These arguments were supported citing only state law statutes, rules of criminal procedure, and cases. See (id. at 795, 804-17.) Amen El filed a pro se brief that largely tracks with his attorney's brief and appears to be premised on state law issues only. See (id. at 866-69.)

         Next, Amen El brought a first petition for postconviction relief in state court on July 14, 2017. (Id. at 777.) The basis for this petition was that Amen El: “a. Claimed new evidence regarding the DNA testing done by the BCA; b. Claimed the Court of Appeals allows a new trial in these circumstances; [and] c. A claimed violation of Petitioner's Equal Protection rights based upon an inability to conduct DNA tests.” (Id. at 778.) This petition was denied under an application of State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). See (id.)

         On September 1, 2017, Amen El brought a second petition for postconviction relief. See (id. at 781.) Amen El's “second petition for post-conviction relief provide[d] no additional information or new basis for relief” in light of his first petition. (Id. at 782.) Consequently, Amen El's second petition was also denied on the basis of Knaffla. See (id. at 782-83.)

         On June 19, 2018, Amen El brought a third petition for postconviction relief. See (id. at 784.) In this petition, Amen El argued that he was required to choose between two constitutional protections: “the right to a speedy trial and the right to effective assistance of counsel.” (Id. at 785.) Amen El's third petition was denied, yet again, under an application of Knaffla. See (id. at 786-92.)

         Amen El brought yet another petition for postconviction relief on September 2, 2018. See (Addendum [Doc. No. 30-1 at 2-6].[2]). In this petition for postconviction relief, Amen El asserts that Simmons v. United States, 390 U.S. 377 (1968), entitles him to relief. See, e.g., (id. at 2-5.) There is nothing before the Court indicating that Amen El's most recent petition for postconviction relief has been decided.

         Amen El's Petition Under 28 U.S.C. § 2254 for Writ of habeas Corpus by a Person in State Custody (“Petition”) [Doc. No. 1] raises multiple grounds for relief: 1) Amen El was “forced to choose between two constitutional rights due to state[']s discovery violation and court not suppressing evidence”; 2) Amen El's conviction violated his rights to a speedy trial; 3) Due Process violations; 4) violations under the First Amendment and Amen El's “freedom to contract” rights. See (Pet. at 5-10.) It is in the context of the first ground that Amen El asserts Simmons, although the Court notes that Amen El cites other cases in support of the first ground that are not implicated by the instant motion. See (id. at 3-5.) Amen El acknowledges that he has not exhausted all his grounds in his Petition in state court. See (Pet. at 12.)

         Amen El brings the instant motion asking to stay in abeyance the instant petition to allow him “to exhaust the presentation of the United States case he relies on to achieve relief.” (Mot. to Stay in Abeyance at 1.) Specifically, Amen El argues that Simmons “must be squarely presented to the lesser courts to exhaust all state remedies.”[3] (Id.)

         II. DISCUSSION

         A. Legal Standard

         An application for writ of habeas corpus is only available to those in custody that exhaust their available state remedies. See 28 U.S.C. § 2254(b)-(c). Exhaustion is a federal requirement that “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As a result, “state prisoners must give the state courts one full opportunity to resolve any [federal] constitutional issues by invoking one complete round of the State's established appellate review process.” Id. Stated differently, “[b]efore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations omitted) (internal quotation marks omitted).

         Where there are both exhausted and unexhausted claims, the petition is considered a “mixed petition.” See Jackson v. Fabian, No. 09-cv-845 (JRT/AJB), 2010 WL 3269882, at *3 (D. Minn. Aug. 17, 2010) (Tunheim, J.). In situations where a petitioner presents a mixed petition in federal court, the Supreme Court has recognized a stay and abeyance procure to allow a petitioner to exhaust the unexhausted claims. See ...


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