United States District Court, D. Minnesota
PHARAOH EL-FOREVER AMEN EL, PRO SE PLAINTIFF.
KATHRYN M. KEENA, DAKOTA COUNTY ATTORNEY FOR DEFENDANT.
MEMORANDUM OPINION AND ORDER ORDER ADOPTING REPORT
R. TUNHEIM CHIEF JUDGE
August 29, 2018, pro se plaintiff Pharaoh El-Forever Amen El
(“Amen El”) filed a petition under 28 U.S.C.
§ 2254 for writ of habeas corpus (“§ 2254
Petition”). He filed a concurrent motion for stay and
abeyance (“Motion to Stay”), asking the Court to
stay his petition until he could exhaust the presentation of
a Supreme Court case, Simmons v. United States, 390
U.S. 377, 394 (1968), to the Minnesota courts. The Court has
before it the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Hildy Bowbeer, recommending that the Court deny the Motion to
Stay. Amen El objects.
Amen El has not demonstrated cause for his failure to
squarely present Simmons to the Minnesota courts,
the Court will overrule his objections, adopt the R&R,
and deny Amen El's Motion to Stay.
was convicted of murder in the second degree on November 3,
2015, and was sentenced to 203 months in prison. (2d Ex. to
Brief of Tom Roy (“2d Ex.”) at 777, Oct. 17,
2018, Docket No. 21-2.) He appealed his conviction to the
Minnesota Court of Appeals, which affirmed the conviction,
and filed a petition for review with the Minnesota Supreme
Court, which denied review. State v. Thomas, No.
A16-0446, 2017 WL 1375279, at *1 (Minn.Ct.App. Apr. 17,
2017), review denied (Minn. June 28, 2017). On
appeal, he submitted two briefs - one by his counsel and
another pro se - citing Minnesota law to argue that the trial
court erred in allowing the state to introduce certain DNA
evidence. (2d Ex. at 793-817, 863-69). Relevant to the
present motion, his counsel argued that Amen El “was
forced to decide between [two] constitutional rights: the
right to a speedy trial and the right to effective assistance
of counsel.” (2d Ex. at 816.)
brought his first petition for postconviction relief in state
court on July 14, 2017. (Id. at 778.) He sought
relief based on “new evidence regarding the DNA testing
done by the BCA, ” argued that the Court of Appeals
allows a new trial in such circumstances, and claimed an
Equal Protection violation due to his “inability to
collect DNA tests.” (Id.) The court denied
relief, finding that his petition was barred by State v.
Knaffla, 243 N.W.2d 737, 741 (Minn. 1976), and did not
satisfy one of the exceptions set forth in Powers v.
State, 731 N.W.2d 499, 502 (Minn. 2007). (Id.)
brought a second petition for postconviction relief in state
court on September 1, 2017. (Id. at 781.) The second
petition “provide[d] no additional information or new
basis for relief” and was also denied based on
Knaffla. (Id. at 782-83.)
brought a third petition for postconviction relief in state
court on June 19, 2018, arguing that he had been forced to
choose between two constitutional rights: speedy trial and
effective assistance of counsel. (Id. at 784-85.)
His third petition was also denied based on Knaffla.
(Id. at 787-92.)
September 2, 2018, Amen El appealed the denial of his three
petitions for postconviction relief to the Minnesota Court of
Appeals. (1st Ex. to Opp. Mem. of Tom Roy at 2-6,
Nov. 15, 2018, Docket No. 30-1.) He argued that his
post-conviction petitions fell under the exceptions to
Knaffla because: (1) the discovery violation at
issue resulted in an unfair advantage to the state, and (2)
Simmons applies to his case but was not presented on
direct appeal because his counsel denied his request to
present it. (Id.)
August 29, 2018, Amen El filed his § 2254 Petition in
this Court. (Pet., Aug. 29, 2018, Docket No. 1.) He raises
four grounds for relief, including that he was forced to
choose between two constitutional rights due to the
state's discovery violations and the court's refusal
to suppress evidence. (Id. at 5-10.) Amen El
acknowledges that he has not exhausted all his arguments in
state court. (Id. at 12.) The merits of his §
2254 Petition are not presently before the Court.
(See R&R at 3 n.3, Jan. 16. 2019, Docket No.
with his § 2254 Petition, Amen El filed the Motion to
Stay, asking the Court to stay his petition until he could
exhaust “all, or certain claims.” (Mot. to Stay
at 1, Aug. 29, 2018, Docket No. 2.) Specifically, he asks
that the Court stay his § 2254 petition to allow the
Minnesota courts to “squarely” consider
application of Simmons to his case. (Id.)
Amen El asserts Simmons in support of his claim that
he was forced to choose between two constitutional rights.
(Pet. at 3.)
before the Court is the Magistrate Judge's R&R
recommending that the Court deny the Motion to Stay because
Amen El “failed to establish good cause for his failure
to exhaust his state court remedies, and . . . his claim
based on Simmons is plainly meritless.”
(R&R at 5.) Amen El objects. (Objs., Feb. 15, 2019,
Docket No. 35.) He argues that he can show cause because he
asked his counsel to present Simmons on appeal, but
his counsel denied his request. (Id. at 1.) He also
argues that Simmons applies to his case because
“it is ...