United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Lamar James
Crump's petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 (Dkt. No. 1). The Petition
has been referred to this Court pursuant to 28 U.S.C. §
636 and District of Minnesota Local Rule 72.1 for the
issuance of a report and recommendation. For the reasons set
forth below, the Court recommends that the Petition be denied
and that no Certificate of Appealability be issued to
Crump is Convicted of First-Degree Assault
State of Minnesota charged Crump with the first-degree
assault of 15-month-old R.H. See State v. Crump, No.
A15-1690, 2016 WL 6826235, at *2 (Minn.Ct.App. Nov. 21,
2016). A jury trial was held on the first-degree assault
charge. Id. A jury found Crump guilty, and the
district court sentenced Crump to 206 months in prison.
Crump Appeals His Conviction
filed an appeal of his conviction. (A-575-607.) Crump
acknowledged that “[w]hile the record is clear that
Crump consented to defense counsel's concession that
great bodily harm occurred, there is nothing in the record
that would support a finding that he acquiesced to his
counsel conceding that R.H. had been assaulted.”
(A-606.) According to Crump, his defense counsel repeatedly
conceded throughout his closing argument that the injuries
caused to R.H. were “non-accidental” and that due
to the definition of assault provided to the jury,
counsel's concession was the same as admitting that R.H.
had been assaulted. (A-597.) Crump sought a new trial based
on this ineffective assistance of counsel claim. (A-593-94,
Minnesota Court of Appeals upheld Crump's conviction. In
this regard, the Minnesota Court of Appeals held as follows:
Crump argues he is entitled to a new trial because defense
counsel conceded Crump's guilt without his consent or
acquiescence. During closing argument, defense counsel
repeatedly referred to R.H.'s injuries as
“non-accidental.” Crump argues that by doing so,
defense counsel conceded the injuries were intentional, and
therefore that R.H. was assaulted-an element of the offense.
We disagree for two reasons.
First, we are not persuaded that defense counsel conceded
that R.H. was assaulted. When viewed in context, it appears
defense counsel was merely arguing that the state had not met
its burden of proof. Defense counsel argued that “[t]he
[s]tate is required to prove each and every element of this
offense” but that even after the state presented its
case “we still don't know exactly or even close to
exactly what happened to [R.H.].” Defense counsel
further argued the jury was “left to guess” what
“Crump supposedly did[.]” When the statements are
taken together, it appears defense counsel is arguing that
the state did not present sufficient evidence to meet its
burden of proving the charged offense beyond a reasonable
Second, even if defense counsel implicitly conceded that R.H.
was assaulted, counsel did not concede an element of the
charged offense. The district court instructed the jury that
the state had to prove beyond a reasonable doubt that (1)
Crump assaulted R.H., (2) Crump inflicted great bodily harm
upon R.H., and (3) the assault occurred on June 26, 2014, in
Dakota County. Accordingly, the state was required to prove
not just that R.H. was assaulted, but that Crump was the
person who assaulted him. Even if defense counsel's
statements were interpreted to imply that R.H. was assaulted,
they do not suggest that Crump was the person who assaulted
him. Indeed, defense counsel's statements are consistent
with his argument to the jury that it was “equally
plausible” that J.W. woke up early and “got upset
enough with [R.H.] to inflict these injuries.” In sum,
when the statements are viewed in the context of the totality
of the circumstances, they do not amount to a concession of
Crump, 2016 WL 6826235, at *2 (footnote omitted).
filed a Petition for Review with the Minnesota Supreme Court,
which was denied on February 14, 2017. (A-627-47.)
argues that he was denied his right to effective assistance
of counsel and to have every element of the charges against
him be decided by a jury when trial counsel repeatedly
admitted an element of the first-degree assault charges to
the jury without his consent or acquiescence. (Dkt. No. 1 at
4.) Specifically, Crump claims that his trial counsel
admitted two of the elements of the charge against him for
first-degree assault without his consent: (1) that RH's
injuries constituted great bodily harm and; and (2) that the
injuries to R.H. were not accidentally inflicted.
(Id.) According to Crump, his trial counsel told the
jury at least seven times that the injuries to R.H. were not
accidentally inflicted and told the jury once that the
injuries constituted great bodily harm. (Id.)
Facts Related to R.H.'s June 26, 2014 Injuries
worked the nightshift at her job from 9:00 p.m. to 6:00 a.m.
(A-85, 92, 152, 155.) R.S. would take her son, 15-month-old
R.H., to her friend, J.W.'s, apartment, in the same
apartment building as R.S., around 8:30 p.m. on the evenings
she worked. (A-91, 152.) Because J.W. needed to have R.H.
picked up by 5:00 a.m. so she could go to work, arrangements
were made at times to have R.H. brought back to his
mother's apartment, where Crump would take care of R.H.
until R.S. returned home from work. (A-92-93, 155.) R.S. and
Crump had been dating for approximately four months prior to
R.H.'s injuries. (A-90.)
25, 2014, R.S. took R.H. to J.W.'s apartment around 8:30
p.m. and went to work. (A-96, 155.) J.W. arrived at
R.S.'s apartment with R.H. a little after 5:00 a.m.
(A-163.) J.W. testified R.H. was asleep and “perfectly
fine” when she left him with Crump, who was on the
phone with R.S. when J.W. arrived. (A-99-100, 163, 170.)
According to R.S., Crump told her that R.H.'s eyes rolled
back in his head when Crump placed R.H. into a car sometime
after R.H. had been left with him. (A-113.) Crump carried
R.H. to J.W.'s apartment and J.W.'s daughter, M.F.,
answered the door and instructed Crump to call 911.
(A-184-86.) At this time R.H. looked “lifeless.”
approximately 6:20 a.m. on June 26, 2015, emergency
responders were dispatched to an apartment in South St. Paul
following a 911 call regarding a possible cardiac arrest of a
15-month-old child. (A-65-67, 73-75, 215.) Upon arriving at
the apartment building, paramedics found R.H. laying on the
living room floor unresponsive to any stimulus. (A-65-66,
testifying medical providers, Drs. Richard Patterson, Meysam
Kebriaei, and Mark Hudson, all testified regarding the
serious and substantial injuries suffered to R.H.'s head,
including a subdural hemorrhage (without a skull fracture),
the swelling of his brain, and trauma to his abdomen
(including R.H's liver), and that these injuries to R.H.
were indicative of abusive trauma. (A-270-72, 291-92, 307-09,
369.) Medical providers testified that the type of accident
that would be expected to cause similar injuries would be
where a child is in a motor vehicle accident and flies out
and hits the windshield, and that it was very unlikely that
the injuries suffered by R.H. were the result of an accident
(such as a fall from a chair), especially in light of the
additional blunt trauma present in the abdomen and liver.
(A-271, 307-09, 352-54.)
injuries suffered by R.H. resulted in permanent brain damage.
following instructions were provided to the jury regarding
the first-degree assault charge prior to the parties'
The State must convince you by evidence beyond a reasonable
doubt that the defendant is guilty of the crime charged. The
defendant has no obligation to prove innocence. The defendant
has the right not to testify. This right is guaranteed by the
federal and state constitutions. You should not draw any
inference from the fact that the defendant has not testified
in this case.
Intentionally Defined. Intentionally means that the actor
either has a purpose to do the thing or cause the results
specified or believes that the act performed by the actor, if
successful, will cause the result. In addition, the actor
must have knowledge of those facts that are necessary to make
the actor's conduct criminal and that are set forth after
the word intentionally.
Assault Defined. The statutes of Minnesota provide that
whoever does an act with intent to cause fear in another
person of immediate bodily harm or death or intentionally
inflicts or attempts to inflict ...