United States District Court, D. Minnesota
Zachary A. Longsdorf, Longsdorf Law Firm, PLC, for
K. Jenny, Assistant County Attorney, for Respondent.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Lincoln Lamar
Caldwell's Objections [Doc. No. 17] to United States
Magistrate Judge Tony N. Leung's April 8, 2018 Report and
Recommendation [Doc. No. 16] (“R&R”). The
magistrate judge recommended that Petitioner's 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus by a Person in
State Custody [Doc. No. 1] (“Petition”) be
denied, the action be dismissed with prejudice, and a
Certificate of Appealability be denied. (R&R at 6.). For
the reasons set forth below, Petitioner's objections are
overruled, the Court adopts the R&R in its entirety,
denies a Certificate of Appealability, and dismisses this
matter with prejudice.
factual and procedural background of this matter is well
documented in the R&R and is incorporated herein by
reference. This Court will recite background facts only to
the extent necessary to rule on Petitioner's objections.
State Court Proceedings
2008, Petitioner was convicted in Hennepin County District
Court on six counts of murder. (See Pet. at 1;
State v. Caldwell, 803 N.W.2d 373');">803 N.W.2d 373, 379, 381 (Minn.
2011) (“Caldwell I”). Caldwell was the
driver of an SUV involved in a drive-by shooting that killed
Brian Cole. State v. Caldwell, 853 N.W.2d 766, 768
(Minn. 2014) (“Caldwell II”). Both
Caldwell and one of his passengers, the shooter, Kirk
Harrison, were members of the LL gang, rivals of the One-Nine
gang. Id. Although Cole was not a member of either
gang, he was standing near members of the One-Nine gang when
Harrison shot him. Id.
Petitioner's jury trial, the prosecution presented
evidence regarding the LL gang, including evidence about hand
signs, drug activities, and the rivalry with the One-Nine
gang. Caldwell I, 803 N.W2d at 379-81. A witness
confirmed that a photograph of Caldwell showed him displaying
the LL gang sign. Id. at 380. The prosecution called
numerous trial witnesses, some of whom were in Caldwell's
SUV at the time of the shooting, including Carnell
Harrison and William Brooks, and some of whom were
not present at the shooting, but discussed the shooting with
Caldwell afterwards, including Shawntis Turnage. Id.
testified that at a party shortly after the shooting, he
encountered Caldwell, who recounted “g[etting]
down” with the One-Nines, which Turnage understood to
mean “fighting or shooting or [a] brawl or
something.” Caldwell II, 853 N.W.2d at 768.
Turnage also testified that Caldwell had explained that a
One-Nine gang leader known as “Ill Will” had been
the intended target of the shooting, and Caldwell had
described the gun used in the shooting as a “grey and
black Smith & Wesson” 9 mm semiautomatic pistol
that Turnage knew Caldwell possessed. Id.
was represented by counsel during his jury trial. Prospective
jurors completed a 91-question questionnaire, and during voir
dire, defense counsel demonstrated his familiarity with the
completed questionnaires by asking some particularized
questions of the venire. Caldwell I, 803 N.W.2d at
386-87. Defense counsel also prepared a list of a number of
prospective jurors whom he planned to strike, and moved to
strike several jurors for cause, with some success.
Id. at 387.
during trial, Caldwell's mother disrupted the proceedings
on a number of occasions, for which she was initially
temporarily barred from the courtroom, and later banned from
the courtroom for the duration of the trial. (See
R&R at 42-47.) Prior to delivering the final jury
instructions, the district judge permitted members of the
public an opportunity to leave the courtroom, but then locked
the doors of the courtroom during the final jury
instructions. (Id. at 48.)
noted, the jury ultimately convicted Caldwell on all six
counts and the district court sentenced him to life in prison
without the possibility of parole. Caldwell I, 803
N.W.2d at 381.
addition to the charges brought against Caldwell, the
shooter, Kirk Harrison, was also prosecuted for Cole's
murder. Id. at 387. Kirk Harrison proceeded to a
bench trial in Hennepin County District Court, where he was
convicted of unintentional murder in the second degree for
causing death while committing the felony of drive-by murder.
Id. at 381. The court found that the prosecution had
failed to prove that Kirk Harrison had the intent to cause
the death of another, or that the LLs met the statutory
definition of a gang. Id.
filed a direct appeal, which was later stayed so that he
could file a postconviction motion. Id. In
Caldwell's first postconviction motion, he argued, as
relevant here, that: (1) the doctrine of non-mutual
collateral estoppel barred his conviction; (2) he received
ineffective assistance of counsel; and (3) he was denied his
Sixth Amendment right to a public trial. Id. at 382,
390. The postconviction court denied Caldwell's petition,
which he then appealed. Id. at 381. That appeal was
also stayed so that Caldwell could file a second
postconviction petition. Id.
Caldwell's second postconviction petition, he argued that
he was entitled to an evidentiary hearing on the basis of
newly discovered evidence. Id. The postconviction
court denied Caldwell's second postconviction petition,
which he appealed. The Minnesota Supreme Court consolidated
Caldwell's appeals and denied relief. Id. at
Caldwell filed a third petition for postconviction relief,
alleging that three witnesses had presented false testimony
in his trial. Caldwell II, 853 N.W.2d at 768. He
requested an evidentiary hearing. Id. In support of
his petition, Caldwell submitted a notarized affidavit from
an investigator who interviewed certain witnesses, including
Turnage, and obtained statements in which they recanted their
trial testimony. Id. at 769. After the
postconviction court summarily denied Caldwell's request
for an evidentiary hearing, he appealed the denial of the
hearing. Id. at 769-70. The Minnesota Supreme Court
found that the postconviction court had denied the motion
prematurely and remanded the matter for an evidentiary
hearing. Id. at 778.
postconviction court held the evidentiary hearing in June
2015. Caldwell v. State, 886 N.W.2d 491, 498 (Minn.
2016) (“Caldwell III”). Carnell Harrison
recanted his trial testimony, and Brooks could not be
located. Id. After Turnage was sworn as a witness,
the court informed him of the right against
self-incrimination and that the prosecution might consider
perjury charges. Id. at 495. Turnage indicated that
he understood his rights and declined the offer to talk to an
attorney. Id. On direct examination, Turnage
testified that he had never seen Caldwell with a gun, nor had
Caldwell told him that he “got down with the
One-Nines.” Id. at 495-99. He explained that
his testimony was different in 2008 because he was young at
the time and had felt intimidated. Id. at 495. On
cross examination, the prosecutor referred to possible
perjury charges against Turnage, as well as charges related
to aiding and abetting an offender after-the-fact, and
possible sentences for an aiding and abetting offense.
Id. In light of Turnage's apparent confusion
about his Fifth Amendment rights, the court recessed
Turnage's testimony to allow him to seek counsel.
Id. at 497. Thereafter, Turnage obtained counsel and
the hearing resumed three months later. Id. At the
reconvened hearing, Turnage invoked his Fifth Amendment
rights and refused to answer further questions. Id.
postconviction court then struck Turnage's testimony from
the earlier evidentiary hearing, finding that Turnage's
Fifth Amendment waiver had not been complete, knowing, and
voluntary. Id. The postconviction court also
concluded that Carnell Harrison's new testimony was not
credible and even if Turnage had not testified at trial, it
was unlikely that the jury would have reached a different
verdict. Id. at 501. The postconviction court
therefore denied Caldwell's third motion for
postconviction relief. Id.
appealed to the Minnesota Supreme Court, arguing that the
postconviction court and the prosecutor had interfered with
Turnage's decision to testify at the postconviction
hearing, thereby violating Caldwell's Fourteenth
Amendment right to due process. Id. In addition, he
argued that the postconviction court erred by striking
Turnage's testimony, and the remedy for the
constitutional violation was the dismissal of the indictment.
Id. at 498.
Caldwell III, the Minnesota Supreme Court disagreed,
finding no violation of Caldwell's constitutional rights.
Id. at 500-03. While it acknowledged that the
invocation of perjury charges can sometimes lead to the
intimidation of a witness, it relied heavily on the
postconviction court's first-hand observation of the tone
and nature of questioning and found that the prosecution had
not intimidated Turnage. Id. Nor did the Minnesota
Supreme find any error on the part of the postconviction
court in striking Turnage's earlier testimony.
Id. Accordingly, it affirmed the postconviction
court's denial of relief.
2017, Caldwell filed the instant Petition in this Court
pursuant to 28 U.S.C. § 2254. He identifies the
following bases for his claim that he is being held in
violation of U.S. law:
Ground One: Ineffective Assistance of
Counsel, in violation of the Sixth Amendment, based on: (1)
counsel's alleged inattentiveness or indifference during
jury selection; and (2) counsel's limited interaction
with Caldwell prior to trial.
Ground Two: Due process violation resulting
from his conviction of committing a crime for the benefit of
a gang despite insufficient evidence to satisfy all the
elements of that crime. Namely, he contends that: (1) there
was no evidence presented to show that he or his alleged gang
existed for the purpose of engaging in illegal activity nor
did any evidence show a pattern of crime committed by the
alleged gang; (2) the principal in the crime for which
Caldwell was charged with aiding and abetting was acquitted
of committing the crime for the benefit of a gang; and (3)
the amount of gang-related testimony prejudiced
Caldwell's right to a fair trial.
Ground Three: Due process violation based on
Caldwell's conviction for intentional and premeditated
murder despite insufficient evidence to satisfy all the
elements of the crime. Specifically, he contends that the
prosecution failed to present evidence of the principal's
premeditation or intent and the principal was acquitted of
premeditation and intentional murder counts after a bench
Ground Four: Due process violation based on
Caldwell's conviction for aiding and abetting Kirk
Harrison, the principal, for a crime for which Harrison had
been acquitted after the prosecution had a full and fair
opportunity to litigate the issues of Harrison's intent
Ground Five: Due process violation arising
from a postconviction hearing, in which a witness who was in
the process of giving testimony favorable to Petitioner,
asserted his right against self-incrimination after being
threatened with perjury charges and a sentence of up to
“half a life sentence” for “aiding an