United States District Court, D. Minnesota
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. 
Patrick J. Schiltz United States District Judge.
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.
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,  and his motion to amend.
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
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
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.
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.
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”).
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).
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)).
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.
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, ...