United States District Court, D. Minnesota
Rico P. Howard, Petitioner,
State of Minnesota, Respondent.
P. Howard, MCF-Rush City, pro se
Brittany D. Lawonn and Jean E. Burdorf, Hennepin County
Attorney's Office, for Respondent State of Minnesota
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the State of Minnesota's
Motion to Dismiss [Doc. No. 7] Rico P. Howard's Petition
for Writ of Habeas Corpus [Doc. No. 1]. Howard filed his
habeas petition pursuant to 28 U.S.C. § 2254,
challenging his conviction of second-degree murder and
363-month sentence. (Pet. at 1 [Doc. No. 1].) Howard is
incarcerated at the Minnesota Correctional Facility in Rush
City, Minnesota. The motion to dismiss was 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. The Court concludes that Howard is not
entitled to habeas relief because all of his claims are
barred by the one-year statute of limitations established by
28 U.S.C. § 2244(d)(1). Therefore, the Court recommends
that the petition be dismissed, the motion to dismiss be
granted, and no certificate of appealability be granted.
pleaded guilty to and was convicted of second-degree murder
in Hennepin County District Court. State v. Howard,
No. A15-1391, 2016 WL 1397213, at *1 (Minn.Ct.App. Apr. 11,
2016). He was sentenced on June 1, 2015, to 363 months in
prison. Id. at *2. He appealed to the Minnesota
Court of Appeals, arguing that the trial court erred when it
denied (1) his request for substitute counsel and (2) his
motion for a downward durational departure. Id. at
*1. The Court of Appeals affirmed in both respects,
concluding that the motion for substitute counsel was
untimely, that his guilty plea essentially waived his
substitute counsel argument, and that his plea was voluntary.
Id. at *3-4. Additionally, the court of appeals
determined that the trial court did not abuse its discretion
in refusing to grant Howard a downward durational departure
at sentencing. Id. at *4. Howard filed a petition
for review in the Minnesota Supreme Court, which denied the
petition on June 29, 2016. The Minnesota Court of Appeals
entered judgment on August 1, 2016. (Resp't App. at 79
[Doc. No. 8].) Howard asserts that he filed a petition for a
writ of certiorari in the United States Supreme Court that
was denied on April 28, 2017. (Pet. at 3.)
on August 26, 2015, Howard filed a request for a restitution
hearing to challenge the trial court's award of $7,
408.50 to the victim's fiancé and $7, 408.50 to
the Minnesota Crime Victims Reparations Board. Howard v.
State, 909 N.W.2d 595, 597 (Minn.Ct.App. 2018). The
state district court did not hold a restitution hearing, but
decreased the fiancé's award to $1, 400 and
amended the restitution order. Id. On January 12,
2017, Howard filed a postconviction motion seeking to vacate
the amended restitution order, which the trial court denied.
Id. Howard appealed, and the Minnesota Court of
Appeals reversed the decision and remanded the matter to the
district court to schedule a restitution hearing.
Id. at 597-98.
filed a second postconviction petition on June 26, 2017,
asserting he had pleaded guilty under duress from his
attorneys. (Resp't App. at 119-24.) On November 29, 2017,
the state district court denied the petition for lack of
jurisdiction, in light of Howard's then-pending direct
appeal of his conviction. (Id. at 140-42). In the
alternative, the court found the claim barred by State v.
Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). (Id.
filed his federal habeas petition pursuant to § 2254 on
January 9, 2019. [Doc. No. 1.] He raises four grounds for
relief: (1) the trial court erred when it denied his request
for a downward departure; (2) the trial court erred when it
denied him substitute counsel; (3) his attorney manipulated
him into pleading guilty and thus his plea was not voluntary;
and (4) new evidence will prove his actual innocence. (Pet.
at 5-10 [Doc. No. 1].) The first three grounds relate to
claims that were the subject of Howard's direct appeal.
Howard believes that his petition is timely because his state
postconviction petition tolled the applicable one-year
statute of limitations. (Pet. at 14 [Doc. No. 1].)
State of Minnesota filed its response on February 13, 2019.
[Doc. No. 6.] The State contends that all of Howard's
claims are barred by the one-year statute of limitations,
that Howard has not exhausted his fourth claim, and that all
claims fail on the merits.
Antiterrorism and Effective Death Penalty Act (AEDPA)
established a one-year statute of limitations for state
prisoners to file habeas corpus petitions seeking federal
court review of their convictions or sentences. 28 U.S.C.
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...