United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Brisbois United, States Magistrate Judge
matter came before the undersigned United States Magistrate
Judge pursuant to a referral for report and recommendation in
accordance with the provisions of 28 U.S.C. § 636 and
Local Rule 72.1, as well as, upon Petitioner Kemen Lavatos
Taylor's Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. [Docket No. 24].
following reasons, the Court recommends Petitioner's
Amended Petition, [Docket No. 24], be
DENIED, and further recommends declining to
grant Taylor a certificate of appealability (COA).
case's procedural history is complicated, but
understanding that history-especially Taylor's direct
appeal-will help explain the discussion below. Thus, the
Court will recount key, relevant aspects of Taylor's
trial, his direct appeal, his first § 2254 petition, and
his state-court petition for postconviction review, and then
highlight the arguments raised by the present Amended
October 2012, a grand jury indicted Taylor on nine counts of
first-degree murder and first-degree attempted murder,
including in relevant part one count of murder with
premeditation and two counts of murder while committing
another felony. Register of Actions, State v.
Taylor, No. 27-CR-12-33028 (State-Court Docket)
(case-information section), available at
http://pa.courts.state.mn.us (last accessed Jan. 3, 2019);
cf. Minn. Stat. § 609.185 (a)(1), (3)
(first-degree-murder statute). The charges concerned an
August 2011, incident in which several teenagers were shot
at; two were hit, and one (Rayjon Gomez) died. State v.
Taylor, 869 N.W.2d 1, 7 (Minn. 2015) (Taylor
the issues from Taylor's trial are relevant to the
Amended Petition. See, (Pet.'s Mem., [Docket No.
25], at 8-12, 22-23. First, before the trial, the district
court, “[t]o prevent disruptions by persons in the
gallery, . . . issued a list of ‘basic rules' for
[trial] spectators, ” including bans on
“profanity, threatening gestures, gum chewing, and cell
phones.” Taylor I, 869 N.W.2d at
The court also “required spectators to show
photographic identification before being allowed entry into
the courtroom.” Id. at 10. Taylor did not
object to these rules, including the photo-ID requirement.
the district court excluded certain evidence that Taylor had
wished to submit relative to two witnesses. Id. at
12. Under the prosecution's case theory, Taylor himself
did not fire any shots during the August 2011, incident.
Id. at 7. The shots during the incident were fried
by Derrick Catchings and Donquarius Copeland, who along with
Taylor were allegedly members of the Young-N-Thuggin gang.
Id. The prosecution's account was that Taylor
drove Catchings and Copeland into a north Minneapolis
neighborhood to find “Skitz, ” an affiliate of
another gang who had allegedly shot Taylor's younger
brother. Id. After someone in the vehicle believed
that he saw Skitz, Catchings and Copeland fired several shots
at people in an alley-including the shot leading to
Gomez's death. Id.
trial, Taylor wanted to introduce certain evidence that
Catchings's and Copeland's motive for the shooting
did not involve Taylor. Id. at 12. While not
expressly explained, Taylor appears to believe that because
he did not fire the critical shots his liability under
Minnesota's first-degree-murder statute hinged on him
sharing a motive with the shooters. (Pet.'s Mem., [Docket
No. 25], at 22). At trial, Taylor sought to ask
“Copeland and Catchings about previous gang-related
incidents, ” apparently to show that they had
independent reasons-apart from avenging the shooting of
Taylor's brother-to attack those associated with rival
gangs. Taylor I, 869 N.W.2d at 12. The trial court
excluded that evidence under Minnesota Rule of Evidence 403,
stating that “the fact that other
people also had a motive that was either the same or
different doesn't negate the fact that [Taylor] had a
motive” and that “the fact that other people may
have had different motives is [not] probative for
anybody's case, and it certainly has the possibility of
confusing the issues in the case.”
trial ended with the jury finding him guilty on all counts.
Id. at 10. The court sentenced Taylor to life
without the possibility of parole as well as two concurrent
180-month sentences. State-Court Docket; Pet.'s Mem.,
[Docket No. 25], at 1.
his conviction, Taylor-represented by appointed counsel-filed
a direct appeal with the Minnesota Supreme Court. (Pet.'s
Mem., [Docket No. 25], at 2; Resp. Mem., [Docket No. 30], at
His counsel's appellate brief raised numerous issues,
including that (1) the district court's photo-ID
requirement violated Taylor's Sixth Amendment right to a
public trial, and (2) the district court's Rule 403
ruling was erroneous because it denied Taylor the right to
present evidence in his own defense and denied him the right
to confront the witnesses against him. (Resp. Mem., [Docket
No. 30], at 5-6); Taylor I, 869 N.W.2d at 10-14.
Taylor also filed a pro se brief raising various other
issues. (Resp. Mem., [Docket No. 30], at 6).
asserts that while his direct appeal was pending, he asked
his appointed counsel to stay his appeal so as to press
certain claims through a motion for postconviction relief.
(Pet.'s Mem., [Docket No. 25], at 2). As Taylor explains
it, “Minnesota requires appellants to seek a stay of
their direct appeal in order to pursue postconviction issues
and then combine both the direct appeal and postconviction
appeal together if postconviction relief is denied.”
Id. (citing Minn. R. Crim. Pro. 28.02(4)(4);
State v. Garasha, 393 N.W.2d 20 (Minn.Ct.App.
1986)). Taylor alleges his appointed counsel
refused to seek a stay, so Taylor asked his counsel to
withdraw so that Taylor could proceed pro se. Id. at
2-3. His counsel filed that motion to withdraw on March 31,
2015- more than a month after the Minnesota Supreme Court had
scheduled oral argument on Taylor's appeal for April 8,
2015. State v. Taylor, No. A14-0942, Order 2 (Minn.
Apr. 28, 2015) (April 2015 Order). The Minnesota Supreme
Court granted the motion to withdraw, and it altered the
appeal's scheduling: the court would still consider the
appeal on April 8, 2015, but on the “non-oral”
calendar for nonargued cases. Id. at 1.
April 8, 2015, the Minnesota Supreme Court met and considered
Taylor's appeal as scheduled. Id. Later that
day, Taylor's prior attorney submitted a motion by Taylor
to stay the appeal so that Taylor could file a petition for
postconviction relief in state court. Id. The motion
asserted that Taylor “feels that it's appropriate
for him to file a petition for postconviction relief to
expand the record concerning effective assistance of counsel,
newly discovered evidence, and to explore Brady
material.” State v. Taylor, No. 14-0942, Mot.
to Stay Direct Appeal for Postconviction Proceedings Pursuant
to Minn. R. Crim. P. 28.02, Subd. 4(4) at 2 (Minn. Apr. 8,
2015). The prosecution opposed the motion, noting (among
other things) that the Supreme Court had already considered
the case and that Taylor had not “provide[d] any
specifics regarding his potential claims.” State v.
Taylor, No. A14-0942, State's Resp. to Mot. to Stay
Direct Appeal for Postconviction Proceedings 1 (Minn. Apr.
22, 2015). The Minnesota Supreme Court denied the motion,
observing that “[t]he appeal has been submitted to the
court and an opinion will be filed in due course.”
April 2015, Order.
then moved to voluntarily dismiss his appeal, stating that he
“feels and strongly believes that the issues raised in
[his counsel's brief] are inadequate to warrant relief
and do not meaningfully represent the issues and arguments
which would show that [Taylor's] trial was unfair . . .
.” State v. Taylor, No. A14-0942, Not. of Mot.
and Mot. for Voluntary Dismissal of Direct Appeal (May 26,
2015). He asserted that various issues had been inadequately
factually developed below, describing them as follows:
Appellant wants to raise and challenge among other issues:
trial counsel's ineffectiveness for failing to call
certain witnesses, failing to adequately challenge certain
prejudicial and unconstitutional evidence, failing to present
an adequate defense, failing to challenge the State's
Brady violation; judicial bias on behalf of the
trial judge; and misconduct on behalf the prosecution for
intentionally suppressing and withholding Brady
material, misstating burden of proof, and other various
misconducts of conduct on by the prosecution.
Taylor's view, to develop a factual record for these
issues, he needed to petition the trial court for
postconviction review first, do the needed factual record
development there, and then proceed with his direct appeal.
Id. Importantly, however, the issues that Taylor
listed do not include the public-trial argument made by his
appointed attorney's appellate brief.
Minnesota Supreme Court denied Taylor's motion to
dismiss, and on August 26, 2015, issued an opinion affirming
Taylor's convictions. Taylor I, 869 N.W.2d at
23. Addressing the trial court's photo-ID requirement,
Taylor I observed in relevant part that “[t]he
record does not show whether the identification requirement
was enforced and, if so, whether anyone who sought to enter
the courtroom could not.” Id. at 10. In the
Minnesota Supreme Court's view, this meant that there was
no record evidence that “a significant portion of the
public was unable to attend due to the identification
requirement; that Taylor, his family, his friends, or any
witnesses were excluded; or that any individuals actually
excluded were known to Taylor.” Id. at 11. The
court thus concluded that the photo-ID requirement was not a
“true” closure-that is, the closure was
“too trivial to amount to a violation of the [Sixth]
Amendment.” Id. (quoting State v.
Lindsey, 632 N.W.2d 652, 660-61 (Minn. 2001)) (internal
citation omitted; brackets in Taylor I).
I also rejected Taylor's argument about the excluded
evidence concerning Catchings and Copeland. As already noted,
this argument had two prongs: Taylor argued that excluding
the evidence violated his right to present evidence in his
own defense, and that it violated his right to confront
witnesses. As to the argument's first prong, Taylor
I held that even if it had been error to exclude the
evidence, the error was harmless. Id. at 12-13
(“We are satisfied beyond a reasonable doubt that a
reasonable jury would have reached the same verdict even if
Taylor had been able to present evidence that Copeland and
Catchings had been involved in specific, prior gang-related
incidents.”). Criticially, the court stated, “the
district court's assumed error did not preclude Taylor
from exploring Copeland's and Catchings' gang-related
motives; it only precluded evidence of particular previous
acts.” Id. at 13. Indeed, the court noted
various things Taylor had been allowed to offer into evidence
suggesting that Copeland and Catchings “were not
primarily or solely motivated by the shooting of Taylor's
Taylor's confrontation argument, the court again assumed
that excluding the evidence was error, but again found the
error harmless. Id. at 13-14. The court noted that
while Copeland's and Catchings's testimony was
“critically important to the State's case, ”
their testimony had been corroborated by multiple sources,
Taylor had been able to impeach Copeland and Catchings in
numerous ways, and Taylor had been able to “elicit a
considerable amount of testimony on alternative
First § 2254 Petition
November 14, 2016, Taylor filed this action's original
petition for a writ of habeas corpus. (Pet. Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody [Docket No. 1]). He asserted twelve grounds of
relief, including (as relevant here) that (1) the state
court's photo-ID requirement violated his right to a
public trial; (2) the state court violated Taylor's right
to due process by barring the introduction of evidence
regarding Copeland's and Catching's alternative
motives; and (3) his appellate counsel was ineffective
because he had failed to look for spectators who had been
prevented from attending his trial due to the photo-ID
requirement. (Id. at 5, 7, 17).
March 1, 2017, Taylor filed a petition for postconviction
relief in Minnesota state court. Pet. for Postconviction
Relief, State v. Taylor, No. 27-CR-12-33208 (Minn.
Dist. Ct. Mar. 1, 2017) (Postconviction-Relief Petition),
filed within Resp't's App., [Docket No. 31]
(Roy Appendix); see gen., Section I.D
infra. The same day, he asked this Court to stay
these § 2254 proceedings so that he could exhaust his
state-court postconviction remedies. (Mot. for Stay of
Proceedings [Docket No. 11]). This Court promptly granted
that motion. (Order [Docket No. 12]).
State Postconviction Proceedings
gravamen of Taylor's state Postconviction-Relief Petition
was that Taylor wanted to introduce evidence that various
“[c]ommunity members” and “relatives of
[Taylor]” had in fact been denied access to
Taylor's trial because they “could not show a Photo
ID”; he provided nine affidavits from individuals
stating that they had been excluded from the trial.
(Postconviction-Relief Pet. at 1). Because Taylor
I's public-trial-right discussion reflected there
being no record evidence that the photo-ID requirement caused
anyone's exclusion, Taylor sought an evidentiary hearing
to “expand the record with respect to the courtroom
closing.” Id. at 2. Taylor further suggested
that the decision by his direct-appeal counsel not to stay
the direct appeal “in order to expand the record on the
closed courtroom issue” constituted ineffective
assistance of counsel that itself violated Taylor's
constitutional rights. Id.
state trial court denied the Petition in an Order dated April
28, 2017. State v. Taylor, No. 27-CR-12-33208, Order
Denying Pet'r's Req. for Postconviction Relief (Minn.
Dist. Ct. Apr. 28, 2017) (hereinafter “April 2017,
Order”), filed within Roy App. In that April
2017, Order, the court cited State v. Knaffla, 243
N.W.2d 737 (Minn. 1976), for the proposition that “in
the case of post-conviction relief, all matters which have
already been fully and fairly litigated should not be
re-litigated, ” and Doppler v. State, 660
N.W.2d 797 (Minn. 2003), for the point that “[w]hen a
petitioner bases his claims for post-conviction relief upon
facts and issues that he either raised or knew about at the
time of the direct appeal, Minnesota courts do not allow for
reconsideration of those issues.” Id. at 3.
The court then determined that under this precedent,
Taylor's attempt to factually supplement his
public-trial-right argument was Knaffla-barred: he
had already brought the public-trial-right argument to the
Minnesota Supreme Court, which had rejected it. Id.
at 4. The court also observed that while exceptions to the
Knaffla rule exist, Taylor had not argued that they
applied to his case. Id.
appealed that decision arguing that the district court had
abused its discretion in refusing him an evidentiary hearing.
Taylor v. State, No. A17-0965, Appellant's Br.
and Addendum 4-5 (Minn. Aug. 29, 2017), filed within
Roy App. In Taylor's view, the affidavits presented to
the state court below comprised enough factual material to
mandate an evidentiary hearing about a possible violation of
his public-trial right. Id. at 6-8. He also claimed
that Knaffla did not bar the Postconviction-Review
Petition because of one of the rule's exceptions-that a
postconviction-review petition can raise a previously
addressed issue “when fairness so requires and the
petitioner does not deliberately or inexcusably fail to raise
the issue on direct appeal.” Id. at 8-9
(quoting Doppler, 660 N.W.2d at 801-02). In
response, the State argued, inter alia, that because Taylor
had not argued this interests-of-justice exception to the
state district court, he had forfeited the argument.
Taylor v. State, No. A17-0965, Resp't's Br.
6-7 (Minn. Oct. 12, 2017), filed within Roy App.
Minnesota Supreme Court issued Taylor II on April 4,
2018, affirming the state court's denial of the
Postconviction-Review Petition. Taylor v. State, 910
N.W.2d 35, 36 (Minn. 2018) (Taylor II). The decision
rested on agreement with the State's forfeiture argument:
because Taylor “did not argue in the district court
that the interests-of-justice exception should be applied in
his case, ” the court held, “he has forfeited
appellate review of that argument.” Id. at
38-39 (citing Brocks v. State, 883 N.W.2d 602, 605
Amended § 2254 Petition
the Minnesota Supreme Court issued Taylor II, Taylor
informed this Court of the decision. (Letter [Docket No.
20]). This Court lifted the preexisting stay, and it ordered
Taylor to file an amended § 2254 petition
“representing the current status of issues in the
present case.” (Order [Docket No. 21]).
filed the Amended Petition on June 7, 2018. (Am. Pet. [Docket
No. 25]). Therein, Taylor raises six arguments.
• First, Taylor argues that Taylor I
“unreasonably applied clearly established federal
law” while determining that the state court had not
violated his public-trial rights. Id. at 8.
• Second, Taylor contends that if he “is required
to show prejudice” to bring his first argument,
“he should be granted a hearing to present his claim
because the Minnesota courts denied him an opportunity to
present a factual basis for his claim and show prejudice . .
. .” Id. at 12.
• Third, he claims that this Court should grant him a
hearing “on cause and prejudice to show (1) that
Minnesota's postconviction process is ineffective to
protect Taylor's and other indigent applicant[s'] due
process rights and (2) determine whether Taylor's
appellate counsel rendered ineffective assistance of counsel
by not providing Taylor access to the state postconviction
process.” Id. at 15.
• Fourth, he asserts that the trial court's decision
to bar him from offering “alternative perpetrator
evidence” violated his “Sixth Amendment right to
present a complete defense.” Id. at 22.
• Fifth, he suggests that the cumulative effect of the
first and fourth errors listed above justifies issuance of a
writ of habeas corpus. Id. at 23.
• Sixth, he argues that the ineffective assistance of
his appellate counsel-noted above as a ground for excusing
procedural default-is also a standalone ground for habeas
relief. Id. at 24.
Court will now address the arguments from the Amended
Petition. By way of summary, the Court reaches the following
conclusions: First, the Taylor I discussion of the
trial court's photo-ID requirement was not contrary to,
or an unreasonable application of, clearly established
federal law. Second, Taylor procedurally defaulted his
factually supplemented version of his public-trial argument.
Third, while Taylor contends that-for at least two
reasons-cause and prejudice exist which excuse that
procedural default, neither argument has merit. Fourth,
Taylor argues that the trial court's exclusion of
alternative-motive evidence gives him a separate ground for
habeas relief, but here too Taylor I's treatment
of the issue is not contrary to, or a misapplication of,
federal law. Fifth, Taylor's assertion that cumulative
error supports a grant of habeas relief here is a wholly
without merit: The Court has found no error which may be
cumulated, and the Eighth Circuit does not provide habeas
relief on the basis of cumulative error. Finally, the Court
finds unpersuasive Taylor's claim that ineffective
assistance of counsel provides him a standalone ground for
habeas relief. For reasons discussed in the
cause-and-prejudice discussion, Taylor has procedurally
defaulted this ineffective-assistance argument as well.
The Photo-ID Requirement and Clearly ...