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Gibbons v. Roy

United States District Court, D. Minnesota

January 29, 2019

Andrew James Gibbons, Petitioner,
v.
Tom Roy, Respondent.

          Andrew James Gibbons, pro se.

          Anna Light and Heather Dawn Pipenhagen, Dakota County Attorney's Office, for Defendants.

          Edwin William Stockmeyer, III and Matthew Frank, Minnesota Attorney General's Office, Bremer Tower, for Defendants.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Petitioner Andrew James Gibbons's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”) [Doc. Nos. 1, 1-1], Motion to Expand the Record (“Second Motion to Expand”) [Doc. No. 30], Motion to Consider Supporting Memorandum to Respondent's Answer and to Supplement and Amend, in part, the § 2254 Memorandum (“Motion to Consider”) [Doc. No. 33], Motion to Request Appointment of Essential Expert and Investigator (“Second Motion to Request Appointment”) [Doc. No. 35], Motion to Accept Amended Pleadings via Local Rule 15.1 (a) and (b) (Amended) [Doc. No. 38], and Motion to Accept Amended Pleadings via Local Rule 15.1 (a) and (b) (Strikethrough) [Doc. No. 39].[1] 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 that the Motion to Consider be granted, but that the remaining motions be denied and the Petition be dismissed.

         I. BACKGROUND

         In 2015, after pleading guilty to criminal sexual conduct in the first degree in violation of Minnesota Statutes § 609.342(a), Gibbons was given a 144-month sentence. See (Pet. [Doc. No. 1] at 1.[2]) After being imprisoned for approximately ten months, Gibbons filed a pro se petition for postconviction relief in state court. See (Addendum [Doc. No. 26 at 78-110].) Specifically, Gibbons asked that his guilty plea be vacated because it was not accurate and that the “facts do not support a conviction of Criminal Sexual Conduct in the First Degree.” See (id. at 79); see also (id. at 113.) In support, Gibbons stated “the ‘exception phrase' in 609.341 was ignored in the prosecution and conviction of the case before the court rendering my Plea Inaccurate.” (Id. at 84 (emphasis in original).) Gibbons then argues at length why he believes he should not have been charged with a first-degree offense and why his sentence should be set aside. See, e.g., (id. at 86-91.) Gibbons also requested an evidentiary hearing. See generally (id. at 92-93.) Gibbons requested the hearing because he “want[ed] the Judge to explain . . . the ‘exception phrase' in 609.341 and why one clause (subd. 12(1) or subd. 12(2)) is chosen over the other.” (Id. 92.) Gibbons then resumes his arguments as to why his conduct did not comport with his understanding of the statute under which he was sentenced. See generally (id. at 94-110.) At no point in this petition for postconviction relief does Gibbons raise the effectiveness of his counsel as a basis for postconviction relief. Finding that “the factual basis was adequate for the charge for which he was convicted, ” the state court denied Gibbons's petition for postconviction relief. See (id. at 114); see also (id. at 113-17.)

         Thereafter, Gibbons filed a second petition for postconviction relief, and it was in this petition that he first raised the ineffective assistance of his counsel as grounds for relief. See generally (id. at 136-224.) Gibbons's second petition for postconviction relief was denied for multiple reasons. See (id. at 225-27.) First, the court found Gibbons's arguments regarding the effectiveness of his counsel were barred under State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). See (id. at 226.) Second, the court concluded that Gibbons “failed to meet his burden of proof that his counsel was ineffective.” (Id.) Gibbons appealed this to the Minnesota Court of Appeals. See generally (id. at 228-58.) Finding that “the district court did not abuse its discretion in denying appellant's petition on Knaffla grounds, ” the Minnesota Court of Appeals affirmed the denial of Gibbons's second petition for postconviction relief. See (id. at 279.) Gibbons then petitioned the Minnesota Supreme Court for review, which was denied. See (id. at 285-308, 312.)

         In his instant Petition, Gibbons raises three grounds for relief: 1) “Ineffective counsel as Counsel did not investigate mental health aspects of this case”; 2) “Petitioner did not acquiesce to implications of mens rea by Counsel”; and 3) “Counsel did not advise Petitioner of the Mandatory Minimum when Counsel advised Petitioner to Plead Guilty.” See (id. at 5-9.)

         Along with his Petition, Gibbons filed a Motion for Appointment of Legal Experts and Investigators (“First Motion to Request Appointment”) [Doc. No. 5], and Motion to Expand the Record (“First Motion to Expand”) [Doc. No. 8]. The Court denied these motions without prejudice because it was too early in the proceeding to consider the appropriateness of the motions. See (May 23 Order [Doc. No. 20 at 2].) At the same time, Gibbons also filed a Motion to Stay and Abeyance [Doc. No. 3], which the Court denied premised on Gibbons's failure to demonstrate “good cause for his failure to raise in state court any unexhausted claims.” (Id.) As part of this Order, the Court instructed the parties that “no further submissions from either party will be permitted, except as expressly authorized by Court order.” (Id. at 1.)

         In his Second Motion to Expand, Gibbons requests that the same exhibits subject to his First Motion to Expand be considered in the context of his Petition. See generally (Mem. in Supp. of Second Motion to Expand [Doc. No. 31].) Specifically, Gibbons would like the to Court to consider letters to his trial counsel and medical records to further substantiate his ineffective assistance of counsel ground for habeas relief. See (id. at 2.)

         With respect to his Motion to Consider, Gibbons does not argue why the Court should consider additional submissions. See generally (Mot. to Consider Mem; Mem. in Supp. of Mot. to Consider [Doc. No. 34].) Instead, Gibbons appears to be arguing the merits of his Petition and other motions. See generally (Mem. in Supp. of Mot. to Consider.) For example, Gibbons asserts “Claim #1 (Counsel's Failure to Investigate) is Arguably Exhausted, ” and he argues that his request to withdraw grounds two and three should be granted because “Presentation to the State Court is Futile/State Statute Expressly Forecloses Relief on Claims Two and Three.” (Mem. in Supp. of Mot. to Consider Mem. at 2); see also (Mot. to Consider Mem. at 1.)

         Finally, with respect to Gibbons's Second Motion to Request Appointment, Gibbons request is two-fold: 1) Gibbons “is requesting Legal Experts to conclude that Counsel's Investigation was ‘un-reasonable' since Counsel was indeed notified of Mental Problems and Counsel never investigated Mental Problems from the time of the offense”; and 2) Gibbons “is requesting an Investigator to procure from Defense Counsel a written Statement Authenticating the Originality of the Letters to and from Counsel in the Exhibits per Federal Rule of Evidence 1007.” See (Mem. in Supp. of Second Mot. to Request Appointment [Doc. No. 36 at 2].)

         II. DISCUSSION[3]

         As an initial matter, the Court addresses Gibbons's motion to consider his additional submissions. As mentioned above, the parties were under express instructions not to file additional material with the Court relating to the Petition without first receiving leave to do so. See (May 23 Order at 1.) The Court is unsure why Gibbons attempted to file further arguments pertaining to the merits of his Petition and other motions without first obtaining leave to file them. See generally (Mem. in Supp. of Mot. to Consider.) Nevertheless, the Court must construe pro se filings liberally. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976); Spencer v. Haynes, 774 F.3d 467, 471 (8th Cir. 2014); Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004); Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001). Therefore, out of an abundance of caution, the Court recommends that this motion be granted, and the Court will consider Gibbons's other motions in the context of this Report and Recommendation.

         The Court addresses Gibbons's remaining submissions in this order: 1) Second Motion to Expand; 2) Petition; 3) Motion to Amend; and 4) Second Motion to Request Appointment.

         A. Second Motion to Expand

         1. Legal Standard

         “Federal courts may . . . supplement the state record only in extraordinary circumstances because of the obligation to defer to state courts' factual determinations.” Hall v. Luebbers, 296 F.3d 685, 700 (8th Cir. 2002). “Rule 7 of the Rules Governing Habeas Corpus Cases under Section 2254, . . . provides that ‘[i]f the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition.'” Mark v. Ault, 498 F.3d 775, 788 (8th Cir. 2007). In other words, “[w]hen a petitioner seeks to introduce evidence pursuant to this rule, the conditions prescribed by § 2254(e)(2) must still be met.” Id.; see also Cox v. Burger, 398 F.3d 1025, 1030 (8th Cir. 2005) (“A habeas petitioner must develop the factual basis of his claim in the state court proceedings . . . unless he shows that his claim relies upon a new, retroactive law, or due diligence could not have previously discovered the facts.”). 28 U.S.C. § 2254(e) states in pertinent part:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was ...

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