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DiMartino v. Titus

United States District Court, D. Minnesota

April 17, 2019

DAMON MICHAEL DIMARTINO, Petitioner,
v.
JEFF TITUS, Defendant.

          REPORT AND RECOMMENDATION

          STEVEN E. RAU U.S. MAGISTRATE JUDGE.

         Petitioner 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).[1] 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.

         I. BACKGROUND

         Minnesota 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.

         On 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 review).

         DiMartino 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)).

         II. ANALYSIS

         A. Ground One

         DiMartino asserts that he exhausted Ground One in the Minnesota state courts. See Pet. 7. The Court disagrees; Ground One was procedurally defaulted.

         A court 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 (1989)).

         In 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.

         It is 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, as ...


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