United States District Court, D. Minnesota
ORDER REJECTING REPORT AND RECOMMENDATION AND DENYING
PETITION FOR WRIT OF HABEAS CORPUS
Wilhelmina M. Wright United States District Judge
matter is before the Court on the August 9, 2018 Report and
Recommendation (R&R) of United States Magistrate Judge
Franklin L. Noel. (Dkt. 59.) The R&R recommends granting
Petitioner Andre Verlin Anderson's petition for a writ of
habeas corpus and vacating Anderson's Minnesota state
court convictions. Respondent Warden Vicki Janssen filed
timely objections to the R&R, and Anderson responded to
those objections. For the reasons addressed below, the
R&R is rejected and Anderson's petition for a writ of
habeas corpus is denied.
night of August 19, 2014, near the side of Hicken Road in
Rice Lake Township, located just outside of Duluth,
Minnesota, C.J. was stabbed. Immediately before he was
stabbed, C.J. had been driving Steve Hager and a man who C.J.
did not know to a location to pick up drugs. During their
trip, Hager sat next to C.J. and the other man sat in the
back seat. C.J. later described the back-seat passenger as
having a “scruffy” beard and wearing a black
sweatshirt with the hood up.
point during the trip, the back-seat passenger directed C.J.
to stop on the side of the road where the three men left the
truck to look for a cigarette pack containing drugs. While
C.J. searched for the drugs, the back-seat passenger stabbed
C.J. multiple times. Hager fled with the assailant in
C.J.'s truck, leaving C.J. behind.
following day, an investigator visited C.J. as he recovered
in the hospital and showed C.J. an array of photographs. The
array included a 2011 booking photograph of Anderson, in
which he was clean-shaven and had short hair. C.J. could not
identify his assailant in this array. Two days later, police
showed C.J. a second array that included a more recent
booking photograph of Anderson with a beard and moderately
longer hair. C.J. identified Anderson as his assailant.
Anderson was the only person whose photograph appeared in
case proceeded to trial, at the conclusion of which a Saint
Louis County District Court jury found Anderson guilty of
aiding and abetting attempted second-degree murder, aiding
and abetting first-degree assault, and aiding and abetting
theft of a motor vehicle. Anderson appealed on multiple
grounds. After analyzing and rejecting Anderson's
arguments, the Minnesota Court of Appeals affirmed
Anderson's conviction of each offense.
objects to the R&R's conclusion that Anderson's
habeas petition should be granted. Specifically, Respondent
objects to the determination that the procedure used for the
photographic identification of Anderson in August 2014 was
impermissibly suggestive and that C.J.'s identification
was not otherwise reliable under the totality of the
circumstances. When a party files and serves specific
objections to an R&R, a district court reviews de novo
those portions of the R&R to which an objection is made.
28 U.S.C. § 636(b)(1). The district court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”
Id.; accord Fed. R. Civ. P. 72(b)(3); LR
district court may grant habeas relief when a state
court's decision on the merits is “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States, ” or when the state court's decision is
“based on an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d). The R&R concludes
that the Minnesota Court of Appeals's decision is
“contrary to, or involved an unreasonable application
of, clearly established federal law.” The legal
standard for granting habeas relief under Section 2254 is
intentionally difficult to meet. Woods v. Donald,
135 S.Ct. 1372, 1376 (2015). To succeed on his habeas claim,
Anderson must demonstrate that the Minnesota Court of
Appeals's decision is “objectively unreasonable,
not merely wrong.” Id. (quoting White v.
Woodall, 572 U.S. 415, 419 (2014)). “To satisfy
this high bar, ” Anderson must show that the decision
of the Minnesota Court of Appeals is “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)).
the Court applies the two-prong test articulated by the
Supreme Court of the United States in Simmons v. United
States, 390 U.S. 377 (1968), and Neil v.
Biggers, 409 U.S. 188 (1972). First, the Court considers
whether “the photographic identification procedure was
so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable
misidentification.” Simmons, 390 U.S. at 384.
If so, the Court then considers whether the “totality
of the circumstances” renders the witness's
identification reliable, even though the confrontation
procedure was suggestive. Biggers, 409 U.S. at 199.
Minnesota Court of Appeals applied this test in
Anderson's direct appeal and concluded that the
photographic identification procedure used to identify
Anderson was not impermissibly suggestive. State v.
Anderson, Nos. A16-0565, A16-0880, 2017 WL 1157882, at
*4 (Minn.Ct.App. Mar. 27, 2017). The court determined that
the two photographs of Anderson, one in the first array and
the other in the second, are “so distinctively
different” that including a photo of Anderson in both
photo arrays, without doing the same with any other person,
“was not unduly suggestive.” Id. The
Minnesota Court of Appeals also rejected Anderson's
argument that differences in the cropping of the photographs
in the second array rendered the array “unnecessarily
suggestive, ” concluding that “the photos used
were of reasonably similar individuals.” Id.
Finally, although the Minnesota Court of Appeals acknowledged
that a double-blind procedure for out-of-court photo
identifications is “preferred, ” the court
concluded that “nothing in the record reflects that the
officer showing the photos attempted to influence” C.J.
conclusions of the Minnesota Court of Appeals are not
“objectively unreasonable.” Woods, 135
S.Ct. at 1376 (internal quotation marks omitted). Although a
photograph of Anderson appears in both arrays that were shown
to C.J., and C.J. viewed both arrays within a relatively
short period of time (two days), Anderson's appearance is
noticeably different in each photograph. In the first
photograph Anderson is clean-shaven with short hair, whereas
in the second photograph he has a beard and longer hair. And,
although the photograph of Anderson in the second array is
more closely cropped than the other photos in the array, the
cropping among the other five photos is not identical.
Further, each array features similar-looking white males.
See United States v. Whitewater, 879 F.3d 289, 292
(8th Cir. 2018) (stating that a photo lineup is not
impermissibly suggestive “[w]hen there are no
differences in appearance tending to isolate the
accused's photograph” (internal quotation marks
omitted)). Finally, nothing in the record suggests that, when
looking at either array, C.J. was pressured or influenced to
make a particular identification or any identification at
R&R disagreed with the Minnesota Court of Appeals's
conclusions. But “mere disagreement” does not
warrant granting habeas relief. Long v. Humphrey,
184 F.3d 758, 761 (8th Cir. 1999) (quoting Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.
1999)). Because Anderson has not demonstrated that the
Minnesota Court of Appeals applied United States Supreme
Court precedent in an “objectively ...