United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
N. LEUNG UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Respondent Nate Knutson's
Motion to Dismiss Petition for Writ of Habeas Corpus, ECF No.
11 (Mot. to Dismiss). That motion targets Petitioner Enamidem
Celestine Okon's Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody, ECF No. 1
(Pet.). For the following reasons, the Court recommends
granting the Motion to Dismiss and dismissing the Petition.
simplify the analytical discussion below, the Court provides
a relatively fulsome account of this case's procedural
background. In July 2012, authorities charged Okon with two
counts of aiding and abetting first-degree criminal sexual
conduct. Register of Actions, State v. Okon, No.
73-CR-12-6911 (Minn. Dist. Ct.) (Okon Docket); Minn.
Stat. § 609.342.1(e)(i), (f)(i). Before trial, Okon made
motions in limine seeking (among other things) to
admit certain evidence of the prior sexual conduct of C.M.H.,
the victim of an assault underlying the charges. Order 1,
State v. Okon, No. 73-CR-12-6911 (Minn. Dist. Ct.
May 20, 2013), attached to Pet. Specifically, Okon
sought to introduce evidence from swabs used to collect DNA
from underwear that C.M.H. had worn at the time of the
assault. Id. at 7-8. That evidence suggested that
seminal fluid or semen from five different people-though not
Okon-was found on the underwear. Id. Okon argued
that the “evidence [was] relevant and not barred by
[Minnesota's rape-shield law] because [the evidence]
shows what DNA was present, which excludes his, and because
the presence of semen is one of the exceptions to the rape
shield law.” Id. at 8.
Minnesota evidentiary law-and noting that because “the
issue at trial will be whether [Okon] had oral and vaginal
sex with C.M.J. on the night in question, ” “what
is relevant is if the DNA of any semen matched [Okon's]
DNA”-the district court ruled that Okon could
“introduce evidence of the limited fact that
there was not a DNA match to [Okon] found on the samples from
C.M.J.'s underwear.” Id. He could not,
however, “introduce any evidence as to number of
23, 2013, a jury convicted Okon on both counts. State v.
Okon, No. A13-2018, 2014 WL 3800324, at *2 (Minn.Ct.App.
Aug. 4, 2014) (Okon I); Okon Docket. That
October, the trial court amended a prior order and sentenced
Okon to 172 months in prison. Okon Docket.
October 22, 2013, Okon filed a notice of appeal with the
Minnesota Court of Appeals. Case Information, State v.
Okon, No. A13-2018 (Minn. Ct. App.), available
at http://macsnc.courts.state.mn.us (last accessed Dec.
8, 2018). He made numerous arguments on direct appeal; two
concern the present Motion to Dismiss. First, Okon argued
that by excluding evidence about the number of sources of
semen found on C.M.J.'s underwear, the trial court
misapplied Minnesota law and violated his Sixth Amendment
confrontation right. Okon I, 2014 WL 3800324, at *1;
Appellant's Br. and App. 12-21, State v. Okon,
No. A13-2018 (Minn.Ct.App. Feb. 13, 2014) (Okon Direct-Appeal
Brief). Okon's second relevant argument observed that at
trial, a DNA forensic scientist testified for the state that
(1) a rectal swab taken from C.M.H. indicated the presence of
semen, but an insufficient amount for DNA analysis; and (2)
“semen could be detectable in a vaginal swab for about
five days and in a perioral swab for two to twelve
hours.” Okon I, 2014 WL 3800324, at *2. Okon
argued on appeal-admitting he had not raised the point
below-that this testimony “opened the door” to
introduction of the number-of-sources-of-semen evidence such
that failure to admit that evidence amounted to a mistaken
interpretation of Minnesota law and an infringement of
Okon's confrontation rights. Id.; Okon
Direct-Appeal Br. 21-27.
Minnesota Court of Appeals affirmed Okon's conviction on
August 4, 2014. In relevant part, it determined that the
trial court (1) had not abused its discretion by excluding
the number-of-sources-of-semen evidence, and (2) had not
plainly erred by refusing to allow the evidence to rebut the
DNA-scientist testimony. Okon I, 2014 WL 3800324, at
*2-4. The decision's handling of Okon's confrontation
claims was somewhat unclear. The Court of Appeals recited the
standard that “‘[w]hen an error implicates a
constitutional right, we will award a new trial unless the
error is harmless beyond a reasonable doubt.'”
Id. at *2 (quoting State v. Davis, 820
N.W.2d 525, 533 (Minn. 2012)). Aside from this, however, the
decision did not address whether the trial court had violated
Okon's constitutional rights; it instead
affirmed the trial court's decision based on Minnesota
evidence law. Id. at *3-4.
petitioned the Minnesota Supreme Court for review, including
as a basis for review the trial court's handling of his
confrontation rights. See, e.g., Okon v. Warden
of Moose Lake Prison, No. 14-CV-4499 (JRT/LIB), 2016 WL
1643762, at *3 (D. Minn. Apr. 26, 2016) (Okon III)
(quoting Okon's petition for review). But in October
2014, that court denied his petition. Okon I, 2014
WL 3800324, at *1. Okon did not petition the U.S. Supreme
Court for a writ of certiorari. Mem. in Supp. of Mot. to
Dismiss Pet. for Writ of Habeas Corpus 2, ECF No. 12
(Dismissal Mem.) (not challenged by Okon).
First § 2254 Petition
October 27, 2014, Okon filed a § 2254 petition
challenging his conviction. Pet. Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody 1,
Okon v. Warden of Moose Lake Prison, No. 14-CV-4499
(JRT/LIB) (D. Minn. Oct. 27, 2014) (October 2014 Petition).
Okon raised five grounds for review-including that the trial
court had violated his federal-law confrontation rights by
prohibiting him from offering the number-of-sources-of-semen
evidence. Id. at 5.
October 2014 Petition was assigned to the Honorable John R.
Tunheim, now Chief District Judge for the United States
District Court for the District of Minnesota, and referred to
the Honorable Leo I. Brisbois, Magistrate Judge for the
United States District Court for the District of Minnesota.
Docket, Okon v. Warden of Moose Lake Prison, No.
14-CV-4499 (JRT/LIB) (D. Minn.). Magistrate Judge Brisbois
entered his report and recommendation on July 28, 2015, which
recommended denying the petition and dismissing the action
with prejudice. Order and R. & R., Okon v. Warden of
Moose Lake Prison, No. 14-CV-4499 (JRT/LIB),
2015 WL 13731340, at *1 (D. Minn. July 28, 2015) (Okon
II). Addressing Okon's confrontation argument,
Magistrate Judge Brisbois stated that Okon had not raised a
federal-law confrontation argument in his brief to the
Minnesota Court of Appeals or to the Minnesota Supreme Court,
and so had procedurally defaulted on the issue. Id.
at *6. “[O]ut of an abundance of caution, ”
however, Magistrate Judge Brisbois said he would consider the
argument anyway. Id. He did so as follows:
[Okon] challenges the trial court's exclusion of evidence
of the number of semen DNA samples on the victim's
underwear and the rectal swab. Although [Okon] attempts to
label the trial court's evidentiary decision as a
violation of his federal due process rights, the state trial
court determined the scope of the admissibility of the DNA
evidence that Petitioner sought to admit at trial under
Minnesota law in the form of Minnesota Rule of
Evidence 412 and Minn. Stat. § 609.347, Subd. 3(b). The
United States Supreme Court has made it clear that “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, law
or treaties of the United States.” This Court may not
review the state trial court's decision applying solely
Minnesota law to determine the scope of admissibility of the
DNA evidence that [Okon] sought to admit into evidence at
Id. at *7 (citation omitted).
raised various objections to Okon II, including that
Magistrate Judge Brisbois had erred while reviewing
Okon's confrontation argument. Okon v. Warden of
Moose Lake Prison, No. 14-CV-4499 (JRT/LIB), 2016 WL
1643762, at *2-3 (D. Minn. Apr. 26, 2016) (Okon
III). Reviewing the objections de novo, Chief Judge
Tunheim overruled Okun's confrontation objection, though
his analysis differed from that of Magistrate Judge Brisbois.
Id. at *3-6.
Chief Judge Tunheim found that Okon had sufficiently raised a
federal-law confrontation argument with the Minnesota Court
of Appeals. Id. at *3. Chief Judge Tunheim also
found that the Court of Appeals's resolution of
Okon's claim did not rest on “adequate and
independent state grounds” that would prevent a federal
court from addressing the claim. Id. at *4 (quoting
Echols v. Kemna, 511 F.3d 783, 785 (8th Cir. 2007));
cf. Walker v. Martin, 562 U.S. 307, 316 (2011)
(“A federal habeas court will not review a claim
rejected by a state court if the decision of the state court
rests on a state law ground that is independent of the
federal question and adequate to support the
judgment.”) (internal quotation marks, brackets, and
citation omitted). The Court of Appeals had rested its
analysis on Minnesota evidence law, but Chief Judge Tunheim
observed that “[i]f Okon's argument were correct
and his federal constitutional rights required the state
court to admit the at-issue evidence, then it does not matter
whether the state court properly interpreted state law
because where state law conflicts with the Constitution, a
state judge must apply the Constitution.” Okon
III, 2016 WL 1643762, at *4. Chief Judge Tunheim
concluded that “[t]he Court must . . . decide the
merits of Okon's claim.” Id.
merits, however, Chief Judge Tunheim determined that
Okon's confrontation claim failed. Id. at *6.
The Minnesota Court of Appeals had not addressed Okon's
federal-law confrontation argument, so the Court's task
was “only to evaluate whether the state court's
decision [was] ‘contrary to' established federal
law.” Id. at *4. The applicable test was
whether the Court of Appeals had reached a conclusion
opposite that of the U.S. Supreme Court on a matter of law,
or decided a case differently than the U.S. Supreme Court on
a set of materially indistinguishable facts. Id. at
*2 (quoting Williams v. Taylor, 529 U.S. 362, 412-13
(2000)). Reviewing Okon's arguments, Chief Judge Tunheim
found that Okon had not met this test, id. at *6,
and, as a result, Okon's federal-law confrontation
argument failed as a potential ground for awarding him habeas
Second State-Court Appeal
March 2016-before Okon III issued-Okon moved for
postconviction relief in state court. He argued, in relevant
part, that his confrontation rights had been violated by his
inability to introduce the number-of-sources-of-semen
evidence. Okon v. State, No. A16-0940, 2016 WL
7042097, at *1 (Minn.Ct.App. Dec. 5, 2016) (Okon
IV). The Court does not have a copy of the
postconviction-relief motion, but Okon asserts that it raised
“the same constitutional issue raised on direct appeal,
” Show-Cause Mem. 2, suggesting that it put in play the
federal-law confrontation question. See
Mem. and Aff. in Resp. to Magistrate Judge's Order to
Show Cause Why the Pet. Is Not Time Barred, ECF No. 9
(Show-Cause Memorandum). The state district court denied
Okon's motion in May 2016, stating in relevant part that
State v. Knaffla, 243 N.W.2d 737 (Minn. 1976),
barred Okon's confrontation claim. See Okon IV,
2016 WL 7042097, at *1. Under Knaffla, “where
direct appeal has once been taken, all matters raised
therein, and all claims known but not raised, will not be
considered upon a subsequent petition for postconviction
relief.” 243 N.W.2d at 252.
appealed to the Minnesota Court of Appeals, arguing that
“his constitutional-rights claim based upon the
exclusion of the semen evidence should not be
Knaffla barred because the interests of justice
require that this court analyze the issue.” See
Okon IV, 2016 WL 7042097, at *2; cf. Griffin v.
State, 883 N.W.2d 282, 286 (Minn. 2016) (“An
unraised claim is not Knaffla-barred . . . ‘if
(1) the claim is novel or (2) the interests of fairness and
justice warrant relief.'”) (quoting Andersen v.
State, 830 N.W.2d 1, 8 (Minn. 2013)). The Court of
Appeals affirmed. Okon IV, 2016 WL 7042097, at *4.
Agreeing that it had not “expressly analyzed”
Okon's “exact constitutional issue . . . on direct
appeal, ” the Court of Appeals said that it had
nevertheless “recognized the constitutional component
of [his argument].” Id. at *3. As a result,
Okon had raised his confrontation argument on direct
appeal-and because he had previously raised it, the argument
was correctly deemed Knaffla-barred. Id.
Court of Appeals then determined that the
interests-of-justice exception to Knaffla did not
apply. Id. For that exception to apply, “a
claim must have substantive merit and be made without
deliberate or inexcusable delay.” Id. (citing
Andersen, 830 N.W.2d at 8). The Court of Appeals
held that Okon's claim lacked merit, such that the
interests-of-justice exception did not apply:
The constitutional right to present a defense is limited by
the defendant's responsibility to comply with procedural
and evidentiary rules. We already conducted a detailed
analysis of the underlying evidentiary ruling, recognized the
constitutional component inherent in that ruling, and
concluded that the semen evidence ...