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Chavez-Nelson v. Walz

United States District Court, D. Minnesota

January 25, 2019

SHAVELLE OSCAR CHAVEZ-NELSON, Petitioner,
v.
GOVERNOR TIM WALZ and COMMISSIONER OF CORRECTIONS PAUL SCHNELL, Respondents.

          Shavelle Oscar Chavez-Nelson, pro se.

          Kathryn M. Keena, DAKOTA COUNTY ATTORNEY'S OFFICE, and Matthew Frank and Edwin W. Stockmeyer, III, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, for respondents. [1]

          ORDER

          Patrick J. Schiltz United States District Judge.

         Following a jury trial in Minnesota state court, petitioner Shavelle Oscar Chavez- Nelson was convicted of first-degree premeditated murder and second-degree intentional murder for the killing of Palagor Obang Jobi. Chavez-Nelson was sentenced to life in prison without the possibility of parole. Chavez-Nelson appealed directly to the Minnesota Supreme Court, which affirmed his conviction after rejecting numerous arguments made by his attorney and by Chavez-Nelson himself in a pro se brief. State v. Chavez-Nelson, 882 N.W.2d 579 (Minn. 2016). Chavez-Nelson is now seeking a writ of habeas corpus under 28 U.S.C. § 2254. Chavez-Nelson also has two other motions pending: (1) a motion to strike respondents' amended answer and impose sanctions, and (2) a motion to amend his § 2254 petition.

         This matter is before the court on Chavez-Nelson's objections to the August 2, 2018 Report and Recommendation (“R&R”) of Magistrate Judge Steven E. Rau. Judge Rau recommends denying Chavez-Nelson's § 2254 petition and the two pending motions. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Based on that review, the Court overrules Chavez-Nelson's objections, adopts the R&R, and denies Chavez-Nelson's § 2254 petition, his motion to strike and impose sanctions, [2] and his motion to amend.

         For the most part, all of Chavez-Nelson's arguments in favor of habeas relief have been adequately addressed in Judge Rau's thorough and careful R&R. Only three matters relating to various exhaustion and procedural-default issues merit comment:

         First, Chavez-Nelson objects to the R&R's conclusion that his “liberty-interest claim” is both unexhausted and procedurally defaulted. ECF No. 31 at 1-3, 5-6. Chavez-Nelson's liberty-interest claim is his contention that when the trial judge violated Rule 5.04 of the Minnesota Rules of Criminal Procedure by refusing Chavez- Nelson's request that his advisory counsel represent him at trial-but instead forced Chavez-Nelson to choose between being represented by his original counsel or representing himself-the trial judge deprived Chavez-Nelson of liberty in violation of the Due Process Clause of the Fourteenth Amendment.

         Chavez-Nelson initially contends that the State of Minnesota “forfeited [its] exhaustion and procedural default defenses” to his liberty-interest claim, and that Judge Rau's “raising [the defenses] constitutes an abuse of discretion.” Id. at 6. Chavez- Nelson further contends that the R&R's conclusion that his liberty-interest claim is unexhausted and procedurally defaulted is incorrect. Id. at 1-3.

         When a state fails to raise an affirmative defense to a habeas petition (such as failure to exhaust or procedural default), a court may nevertheless rely on the defense as long as the state did not expressly waive it. See Day v. McDonough, 547 U.S. 198, 202, 205-06 (2006); Dansby v. Hobbs, 766 F.3d 809, 824 (8th Cir. 2014); 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”). Here, the State did not assert an exhaustion or procedural-default defense to Chavez-Nelson's liberty-interest claim in either its first answer, ECF No. 7 at 6-7, or its amended answer, ECF No. 19 at 23-29. But the State also never expressly waived the defenses.

         The State did expressly concede that “Ground One” of Chavez-Nelson's petition was exhausted, but when the State referred to “Ground One, ” it was clearly referring only to Chavez-Nelson's argument that Rule 5.04 was violated and that the violation deprived him of his Sixth Amendment right to counsel. The State did not say a word about Chavez-Nelson's liberty-interest claim. ECF No. 7 at 6-7; ECF No. 19 at 23-29. Saying nothing about a claim is not the same thing as expressly waiving a defense to that claim. “[T]he plain and ordinary meaning of the term ‘express' means directly stated or written, and is meant to distinguish situations where a message is implied or left to inference.” Grinnell Mut. Reinsurance Co. v. Villanueva, 798 F.3d 1146, 1148 (8th Cir. 2015). Thus, the State did not expressly waive its exhaustion or procedural-default defenses to Chavez-Nelson's liberty-interest claim. See, e.g., Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998) (affirming a district court's sua sponte raising of procedural default where the record “indicate[d] that the state's ‘waiver' was an inadvertent byproduct of careless briefing”); Amos v. Cain, Civ. A. No. 04-2029, 2008 WL 782472, at *5 n.21 (E.D. La. Mar. 20, 2008) (concluding that where a “state overlooked [a] claim . . . and, therefore, [did] not raise[]” an applicable procedural-default defense, such a “failure to address the claim and raise the procedural default was clearly inadvertent rather than a purposeful decision made on behalf of the state to forgo the defense”).

         Because the State did not expressly waive its exhaustion or procedural-default defenses, the Court may rely on those defenses in adjudicating Chavez-Nelson's liberty- interest claim. Before doing so, however, the Court “must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. Judge Rau did not warn the parties that he intended to rely on the doctrines of exhaustion and procedural default with respect to Chavez-Nelson's liberty-interest claim, but Judge Rau's R&R obviously provided notice that he had done so, and the parties' opportunity to object to the R&R gave them a full opportunity to be heard on the matter. See, e.g., Magouirk, 144 F.3d at 359 (finding that a Magistrate Judge's R&R placed the habeas petitioner “on notice that procedural default was a potentially dispositive issue, ” and that the petitioner's opportunity to object to the R&R provided “a reasonable opportunity to oppose application of the procedural default doctrine in the district court”); Canady v. Baker, No. 96-4354, 1998 WL 123996, at *1 (6th Cir. Mar. 13, 1998) (same); Albanese v. Capra, 13-CV-5152 (CS) (JCM), 2017 WL 2954401, at *3 (S.D.N.Y. July 10, 2017) (same); Young v. Clearfield Cty. Commonwealth of Pleas, Civ. A. No. 08-5J, 2008 WL 1711099, at *3 n.2 (W.D. Pa. Feb. 26, 2008) (same); Ambo v. Cain, Civ. A. No. 05-3972, 2007 WL 2228538, at *4 (E.D. La. July 31, 2007) (same).

         The Court agrees with Judge Rau that the exhaustion and procedural-default doctrines should be applied, notwithstanding respondents' (apparently) inadvertent failure to assert them in their formal pleadings. Those defenses are “designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). Moreover, the Court agrees with Judge Rau that Chavez-Nelson's liberty-interest claim is unexhausted and procedurally defaulted. Chavez-Nelson never argued before the Minnesota Supreme Court that the violation of Rule 5.04 deprived him of liberty without due process in violation of the Fourteenth Amendment, and it is clear that Chavez-Nelson is now barred from litigating that issue before a state court. See ECF No. 28 at 10-11; see also Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) (“To ‘fairly present' his claim, the petitioner must present the same facts and legal theories to the state court that he later presents to the federal courts. This allows the state court to apply the controlling legal principles to the facts that constitute the federal claims.” (emphasis added)).

         Further, even if the Court were to reach the merits of Chavez-Nelson's liberty- interest claim, it would reject that claim. Subdivision 2(2)(b) of Rule 5.04 provides that “[i]f the court appoints advisory counsel because of concerns about delays in completing the trial, the potential disruption by the defendant, or the complexity or length of the trial”-as the trial judge did at the beginning of Chavez-Nelson's trial, see ECF No. 19-1 at 47, 249-then if the defendant “requests advisory counsel to take over representation during the proceeding, ” “advisory counsel will assume full representation of the defendant.” The Minnesota Supreme Court held that the trial judge violated this rule when she denied Chavez-Nelson's request (made during voir dire) that his advisory counsel take over his representation. Chavez-Nelson, 882 N.W.2d at 586. But that holding does Chavez-Nelson no good in this § 2254 proceeding, as this Court can grant relief only if it finds that Chavez-Nelson “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Thus, Chavez-Nelson has strived mightily to convert a violation of a state rule of procedure into a violation of the United States Constitution.

         Before the Minnesota Supreme Court-and again before this Court-Chavez- Nelson argued that the violation of Rule 5.04 deprived him of the right to counsel guaranteed by the Sixth Amendment. That claim is plainly meritless, for the reasons described by both the Minnesota Supreme Court (Chavez-Nelson, 882 N.W.2d at 587-88) and the R&R (ECF No. 28 at 11-14). The Sixth Amendment gave Chavez-Nelson the right to be represented by an attorney, not by a particular attorney-and certainly not by his advisory counsel. The trial judge made it clear to Chavez-Nelson when he elected to proceed pro se that she would allow his original counsel to resume representation; all Chavez-Nelson had to do was ask (as he did a few days later). Thus, ...


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