United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
September 7, 2018, Petitioner Jeremia Joseph Loper filed a
Petition under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus in the above-captioned case. ECF No. 1. In a Report
and Recommendation (“R&R”) dated February 8,
2019, the Honorable Tony N. Leung, United States Magistrate
Judge, recommended that the Court deny Mr. Loper's
Petition and dismiss the action with prejudice. ECF No. 31.
Mr. Loper objected to the R&R. ECF No. 34. The Court
conducted a de novo review of the record. See Fed.
R. Civ. P. 72(b)(3); D. Minn. LR 72.2(b). For the following
reasons, the Court overrules Mr. Loper's objections and
accepts the recommended disposition.
Mr. Loper objects to the R&R's finding that his
ineffective assistance of appellate counsel claim was
unexhausted and procedurally defaulted. The Magistrate Judge
explained that Mr. Loper “did not identify in his
petition for review before the Minnesota Supreme Court the
specific issues that he contends appellate counsel should
have raised.” R&R at 8. The Magistrate Judge
further reasoned that the ineffective assistance of appellate
counsel claim was procedurally defaulted because Mr. Loper
knew of the claim when he filed his first postconviction
appeal and could not bring it on a second postconviction
appeal pursuant to the Knaffla rule. See Colbert
v. State, 870 N.W.2d 616, 626 (Minn. 2015) (citing
Hooper v. State, 838 N.W.2d 775, 787 (Minn. 2013))
(stating that “the Knaffla rule bars
consideration of claims that were raised, or could have been
raised, in a previous postconviction petition”).
Loper contends that his ineffective assistance of appellate
counsel claim was exhausted because it was
“sufficiently related” to the claims he raised
throughout his state court postconviction proceedings.
See ECF No. 34, Pet'r's Objs. at 7
(“[Mr. Loper] has maintained throughout the entirety of
the proceedings that he has been denied the effective aid of
counsel-both at appellate and trial level-and that these
errors contributed to others and resulted in a conviction in
violation of federally protected constitutional
rights.”). Mr. Loper further contends that even if
his claims are procedurally defaulted, the Court can review
them. A federal court cannot review Knaffla-barred
claims on their merits unless habeas petitioner “is
able to demonstrate either cause for his default and actual
prejudice, or that the failure to consider his claims would
result in a fundamental miscarriage of justice.”
McCall v. Benson, 114 F.3d 754, 758 (8th Cir. 1997).
Mr. Loper argues that the alleged ineffectiveness of
appellate counsel, combined with Mr. Loper's alleged lack
of adequate time in the prison law library,
“caused” his claims to default, resulting in
“actual prejudice” to Mr. Loper.
even if the Court finds that Mr. Loper's ineffective
assistance of counsel claim is exhausted and ripe for review,
the Minnesota Court of Appeals' decisions denying relief
on the merits of that claim was neither contrary to, or an
unreasonable application of, clearly established federal law
as determined by the United States Supreme Court.
See 28 U.S.C. § 2254(d)(1). Nor was the
decision based on an unreasonable determination of the facts
in light of the evidence adduced in state court. See
Id. § 2254(d)(2). Here, the Minnesota Court of
Appeals applied the two-part test for evaluating ineffective
assistance of counsel claims announced in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See Loper v.
State, No. A18-0194, 2018 WL 3826274, at *2-4
(Minn.Ct.App. Aug. 13, 2018), review denied (Sept.
26, 2018) (citing Fratzke v. State, 450 N.W.2d 101,
102 (Minn. 1990), which, in turn quoted the
Strickland test). Further, the court's
conclusions under the Strickland test were not
unreasonable: namely, it was not unreasonable for the court
to conclude that (1) appellate counsel's failure to
adequately investigate the statement that Mr. Loper provided
to law enforcement did not result in prejudice and (2)
counsel's representation was not objectively unreasonable
based on the fact that Mr. Loper's and counsel's
communications were conducted over the telephone and through
letters, rather than during a private consultation.
Id. Accordingly, because the Minnesota Court of
Appeals conclusions were not unreasonable, this Court may not
grant habeas relief on the ineffective assistance of
appellate counsel claim.
Mr. Loper objects to the R&R's conclusion that the
actual innocence exception does not apply to his procedurally
defaulted claims. Mr. Loper's actual innocence theory
relies on the affidavits of several individuals that,
according to Mr. Loper, show that Mr. Loper did not live at
the apartment above Z.C.S. during the summer of 2011. Mr.
Loper argues that if he did not live at that particular
apartment during the summer of 2011, he “could not
possibly have committed this crime.” Pet'r's
Objs. 10. Mr. Loper also contends that the evidence contained
in the affidavits would have “been a severe blow to
Z.C.S. and her mother's credibility, as they both
testified . . . that [the crime] happened in the summer of
reasons set forth in the R&R, it is not likely that this
evidence would have affected the outcome of Mr. Loper's
trial. Additionally, even if Mr. Loper's affidavits show
that he did not live at the apartment above Z.C.S. during the
“summer of 2011, ” at least one of the affidavits
indicates that he “visited” that address during
the summer of 2011 and lived there “after the summer of
2011.” See ECF Nos. 13-3, 28, Hennen and
Krause Affs. The affidavits are therefore consistent with the
conclusion that Mr. Loper visited or lived at the address in
question during the period when the crime
Loper also objects to the R&R's finding that Mr.
Loper admitted to law enforcement that he lived at the
address in question when the crime occurred. Mr. Loper
states: “[Mr.] Loper admitted to being [at the address
in question] ‘at some point,' but that does not
mean the point when Z.C.S. and her mother testified that [the
crime] happened.” Rather, Mr. Loper claims that he
admitted to being at the address during “a different
year and that he did not remember living there in the summer
of 2011.” But based on Mr. Loper's admissions to
law enforcement,  a reasonable juror could find that Mr.
Loper lived at the apartment above Z.C.S. during the time
frame in which the crime occurred (i.e. between
January 1, 2011 and December 31, 2011). Accordingly, even if
Z.C.S. and her mother testified that the crime occurred
during the summer of 2011, and Mr. Loper's admissions and
affidavits establish that he did not live at the address in
question until August 2011, Mr. Loper has not satisfied the
“actual innocence” requirements articulated in
Schlup v. Delo, 513 U.S. 298, 323-30 (1995).
Therefore, Mr. Loper is not entitled to habeas relief on his
procedurally defaulted claims.
Mr. Loper requests a certificate of appealability
(“COA”). A § 2254 habeas petitioner cannot
appeal an adverse ruling on his petition unless he is granted
a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
A COA cannot be granted unless the petitioner “has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(3). To make such a
showing, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. Daniel, 529 U.S. 473, 484
(2000). Because reasonable jurists would not find the
rejection of Mr. Loper's claims debatable or wrong, the
Court declines to issue a COA.
the Court adopts the R&R. Based on the files, records,
and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Jeremia Joseph Loper's Petition for a Writ of Habeas
Corpus, ECF No. 1, be DE1NIED;
2. No certificate of appealability be issued;
3. This action be DISMISSED WITH ...