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Ellis v. Halvorson

United States District Court, D. Minnesota

October 15, 2019

Donald Allen Ellis, Petitioner,
v.
Kathy M. Halvorson, Respondent.

          REPORT AND RECOMMENDATION

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Petitioner Donald Ellis's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody. (Pet., ECF No. 1). This matter was referred to the Court pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1. For the reasons stated herein, the Court recommends dismissing the Petition with prejudice.

         I. BACKGROUND

         Ellis was convicted in Minnesota state court of two counts of felony aiding and abetting identify theft. State v. Ellis, 2014 WL 1875489, at *1 (Minn.Ct.App. May 12, 2014), review denied (Minn. Aug. 5, 2014). Following the jury's guilty verdict, the district court held a Blakely trial to determine aggravating sentencing factors. Id. The jury found two aggravating factors: (1) that Ellis was a career offender and (2) acted as part of a group of three or more participants in both offenses. Id. The district court sentenced Ellis to the statutory maximum sentence on count one and imposed a sentence on count two that was a double upward departure from the presumptive-guidelines sentence. Id. The sentence on count two was to run consecutively from the first. Id. at *1-2.

         On direct appeal, Ellis argued that the district court erred by (1) imposing a double upward departure and consecutive sentence; (2) denying his motion to dismiss one count of felony identity theft; (3) allowing police investigators to testify concerning how they developed Ellis as a suspect; (4) denying his request for a mistrial due to improper witness testimony; (5) allowing a detective to testify concerning an Eighth Circuit Court of Appeals opinion documenting a previous felony conviction; and (6) admitting several probable-cause complaints into evidence during the Blakely trial to establish that Ellis was a career offender. Id. at *1. Ellis also raised 12 arguments in his pro se supplemental brief, several of which were also argued by his counsel. Id. at *11. The Minnesota Court of Appeals rejected the arguments raised by both Ellis and his counsel and affirmed the convictions. Id. at *1.

         The Minnesota Supreme Court denied Ellis's petition for further review on August 5, 2014. Through counsel, Ellis filed a petition for postconviction relief on February 19, 2016. (ECF No. 23-1, at 113; ECF No. 23, at 381). Ellis moved the district court to correct his sentence, arguing that he did not qualify as a career offender for sentencing purposes. (ECF No. 23-1, at 112). The district court granted in part and denied in part Ellis's petition. State v. Ellis, 2017 WL 6567829, at *1 (Minn.Ct.App. Dec. 26, 2017), review denied (Minn. Mar. 20, 2018). It agreed that a 2015 Minnesota Supreme Court decision made clear that Ellis did not qualify as a career offender and, because the count-two sentencing departure had been based exclusively on his status as a career offender, reversed his sentence on count two. Id. at 2. The district court held a resentencing hearing and sentenced Ellis to the presumptive sentence on count two. (ECF No. 23, at 390). Concerning count one, the district court determined that the second aggravating factor alone-that Ellis committed the offense as part of a group of three or more participants-justified the upward departure. Id. at *1. Ellis appealed and the Minnesota Court of Appeals affirmed the district court. Id. Ellis again petitioned the Minnesota Supreme Court for further review; the court denied the petition on March 20, 2018. (ECF No. 23-1, at 111).

         II. HABEAS PETITION

         Ellis filed his petition for habeas relief on March 6, 2019, raising four grounds for relief, which this Court best discerns as: (1) the three-or-more-participants aggravating factor also being an element of the underlying crime violates the Double Jeopardy Clause of the Fifth and Fourteenth Amendments; (2) the prosecutor's Brady disclosure violations offended Ellis's due process rights; (3) the jury's Blakely findings were irreparably tainted by the presentation of inadmissible prior-conviction evidence in violation of Ellis's due process rights; and (4) the district court judge relied on inaccurate evidence to impose an illegal sentence on count one.

         A. Legal Standard

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a federal court's review of habeas corpus petitions filed by state prisoners. Section 2254 is used by state prisoners alleging they are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A federal court may not grant habeas corpus relief to a state prisoner on any issue decided on the merits by a state court unless the proceeding “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or it “(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         Under the AEDPA, habeas petitioners have one year from the latest of four triggering events to file an application for habeas relief in federal court. 28 U.S.C. § 2244(d)(1). A state prisoner ordinarily has one year to file a petition from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). But where the petition alleges newly discovered evidence, the limitations period begins to run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 224(d)(1)(D).[1]

         B. Ellis's Petition is Untimely

         Ellis's conviction became final on November 3, 2014, 90 days after the Minnesota Supreme Court declined review of his case, when he could no longer timely seek a petition for a writ of certiorari from the United States Supreme Court. See Martin v. Fayram, 849 F.3d 691, 697 (8th Cir. 2017). Consequently, absent statutory tolling-an argument Ellis does not raise here-Ellis had one year from November 3, 2014 to petition for federal habeas relief. Id. And while a state postconviction petition tolls the AEDPA's limitations period, 28 U.S.C. § 2244(d)(2), the tolling provision does not revive an already expired limitations period. Clark v. Minnesota Department of Correction, No. 17-cv-4905, 2018 WL 4473526, at *1 (D. Minn. Feb. 26, 2018). Ellis did not file his state postconviction petition until February 2016-over one year from the time Ellis's conviction became final. Ellis's federal habeas clock expired and his petition is therefore untimely. See Martin, 849 F.3d at 697-98.

         C. No. Newly ...


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