United States District Court, D. Minnesota
James Gibbons, pro se.
Light and Heather Dawn Pipenhagen, Dakota County
Attorney's Office, for Defendants.
William Stockmeyer, III and Matthew Frank, Minnesota Attorney
General's Office, Bremer Tower, for Defendants.
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE.
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]. 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.
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.) 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.)
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.)
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.
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.)
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.)
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.
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].)
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
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.
Second Motion to Expand
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
(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
(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