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Amen El v. Roy

United States District Court, D. Minnesota

March 11, 2019

PHARAOH EL-FOREVER AMEN EL, Plaintiff,
v.
TOM ROY, Defendant.

          PHARAOH EL-FOREVER AMEN EL, PRO SE PLAINTIFF.

          KATHRYN M. KEENA, DAKOTA COUNTY ATTORNEY FOR DEFENDANT.

          MEMORANDUM OPINION AND ORDER ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN R. TUNHEIM CHIEF JUDGE

         On 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.

         Because 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.

         BACKGROUND

         Amen El 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.)

         Amen El 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).[1] (Id.)

         Amen El 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.)

         Amen El 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.)

         On 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.)

         On 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. 32.)

         Along 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.)[2]

         Presently 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 ...


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