United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. RAU U.S. MAGISTRATE JUDGE.
Damon Michael DiMartino, a state prisoner, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. See Pet. Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody, ECF No. 1
(Petition); see also Attach. A, ECF No. 1-1
(supplement to Petition) (Attachment). This Court
reviewed the Petition under Rule 4 of the Rules Governing
Section 2254 Cases in the U.S. District Courts. The Court
determined that the Petition contains one procedurally
defaulted claim and one unexhausted claim. As a result, the
Court recommends dismissal (with prejudice) of the
procedurally defaulted claim, and dismissal (without
prejudice) of the unexhausted claim.
authorities charged DiMartino in November 2015 with promoting
prostitution by a person under 18 years old. See State v.
DiMartino, No. A17-0133, 2017 WL 6272707, at *1
(Minn.Ct.App. Dec. 11, 2017). A jury trial began in June
2016, but between jury selection and opening statements,
DiMartino elected to plead guilty. See Id. After
engaging in a plea colloquy with DiMartino, the district
court found that there was a sufficient factual basis for the
plea, but chose to wait until sentencing to formally accept
the plea. See Id. Before sentencing, however,
DiMartino moved to withdraw the plea, asserting that
“he did not voluntarily agree to the guilty plea
because he was not taking his antidepressant medication at
the time he entered the plea.” Id. The
district court denied the motion and sentenced DiMartino to
240 months imprisonment. See id.
appeal, DiMartino argued that “(1) he had the right to
amend his plea prior to the district court's acceptance
of the plea; (2) his plea [was] invalid and create[d] a
manifest injustice; and (3) the district court abused its
discretion by denying his withdrawal of the plea . . .
.” Id. The Minnesota Court of Appeals rejected
all three arguments and affirmed the trial-court judgment.
See Id. at *1-5. DiMartino sought review from the
Minnesota Supreme Court, but that court denied review on
February 20, 2018. See Id. at *1 (noting denial of
mailed the present Petition to the Court on February 15,
2019, and the Clerk of Court filed it on February 21, 2019.
See Pet. 2, 16. The Petition presents two grounds
for review. Ground One asserts that “[t]he Minnesota
Court of Appeals['s] rejection of [DiMartino's]
withdrawal of guilty plea claim is contrary to Boykin v.
Alabama.” Pet. 6; see also Attach. 1-6
(discussing claim); cf. Boykin v. Alabama, 395 U.S.
238, 242 (1967) (deeming it error for trial judge to
“accept petitioner's guilty plea without an
affirmative showing that it was intelligent and
voluntary”). Ground Two asserts that DiMartino's
appellate counsel “was ineffective for failing to make
a Hill v. Lockhart challenge.” Pet. 8; see
also Attach. 6-7 (discussing claim); cf. Hill v.
Lockhart, 474 U.S. 52, 56 (1985) (stating that when
“defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the
voluntariness of the plea depends on whether counsel's
advice was within the range of competence demanded of
attorneys in criminal cases” (internal quotation marks
and citation omitted)).
asserts that he exhausted Ground One in the Minnesota state
courts. See Pet. 7. The Court disagrees; Ground One
was procedurally defaulted.
may not grant a § 2254 petition unless the petitioner
has exhausted his state-court remedies. See 28
U.S.C. § 2254(b)(1)(A) (“An application for a writ
of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the State”). The U.S.
Supreme Court explained this requirement as follows:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, thereby
giving the State the opportunity to pass upon and correct
alleged violations of its prisoners' federal rights. To
provide the State with the necessary opportunity, the
prisoner must fairly present his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the
federal nature of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal
citations and quotation marks omitted); see also,
e.g., Nash v. Russell, 807 F.3d 892, 898 (8th
Cir. 2015) (quoting Baldwin). A claim has been
“fairly presented” to the state courts if
“the state court rules on the merits of [the
petitioner's] claims, or if he presents his claims in a
manner that entitles him to a ruling on the merits.”
Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir.
1999) (citing Castille v. Peoples, 489 U.S. 346, 351
Minnesota, fair presentation requires presentation to the
Minnesota Supreme Court. See, e.g., Latimer v.
Smith, 351 F.Supp.3d 1218, 1224 (D. Minn. 2018). The
relevant question here, then, is whether DiMartino fairly
presented his Boykin claim to the Minnesota Supreme
Court under either prong of the fair-presentation test.
worth pausing here to clarify what DiMartino's
Boykin argument is. Ground One cites as error that
“[t]he Minnesota Court of Appeals analysis did not
include [Boykin] considerations, ” because
“[t]he record is devoid as to why Petitioner provided
testimony contrary to guilt.” Attach. 6. As the Court
construes the argument, DiMartino contends that the Court of
Appeals's decision was contrary to, or involved an
unreasonable application of, Boykin. Cf. 28
U.S.C. § 2254(d)(1) (stating that § 2254
application “shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim . . .
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,