Follow up to Judge Micko's Report and Recommendation (R&R)

Response to the R&R --

As you can see from a previous post, I was disappointed with the Report and Recommendation (R&R) that I received from the magistrate judge for my federal habeas corpus petition. He did not address any of the legal merits of the issues, and merely refused to review them and claim that I didn't raise them properly or exhaust my remedies at the State court level. I've read a lot of R&Rs for other cases, and the fact that he refused to address the legal merits tells me that the legal merits are accurate and would overturn my case, because often what the judges do in the R&R is they say something like "Petitioner did not exhaust his remedy at the State court level because of ______, but had he exhausted his remedy his issue is still without merit because of ______." They do this to strengthen their report on appeal and protect it from being overturned. If his report is upheld by the federal district court judge Tunheim, then my appeal is basically just arguing that his interpretation of "exhausting my remedies" was incorrect (which I will address below), but if he also had addressed the merits of this issues and showed that my issues were without merit, then I would have had to prove all of that on appeal too, which would be more difficult. So it is in their best interest to document issues without merit in their R&R and the fact that he chose not to do that is telling.

Here is a summary of my R&R, which I only had 2 days to do, but I think hits the salient points.

He starts out with Jones v. Jerrison, 20 F.3d 849 (8th cir 1994), which says that the petition must raise "the same facts and 'legal theories' to the state courts that he later raises to the federal court" That is absolutely correct and it is backed up by U.S. Supreme Court case law. The legal principle is "Comity" - the lower court gets an opportunity to resolve the issue first before a higher court has jurisdiction to review it (with a few specific exceptions). 

On this blog, you have the ability to review everything that I've filed and you can see that I've been arguing the exact same facts and legal theories from the beginning (I am innocent, the prosecutors withheld evidence, the state witnesses lied, etc). However, he tried to narrow the meaning of "fairly presenting my claim to the state court" to mean that if I did not use the exact wording of the Constitution with something like "My Fifth Amendment rights were violated by ____", then I was not giving the state courts an opportunity to understand that I was arguing a federal issue (federal courts can only address federal constitutional issues). This is not how I understand the law. In fact the key U.S. Supreme Court case regarding the exhaustion requirement says, "we DO NOT imply that respondent could have the ... claim only by citing chapter and verse on the federal constitution. We simply hold that the SUBSTANCE of a federal habeas corpus claim must first be presented to the state courts." (Picard v. Connor, 404 U.S. 270,278(1971)) Hmm, that sounds a lot different than what judge Micko is claiming. 

I've tried to give you all the information that I can about my case on this blog because I believe it is important for you to see the abuses of the 'judicial' system. You can clearly see that the substance of my issues have claimed federal violations from the beginning. I pointed out in my objection that my Brady (withholding of evidence) and Napue (prosecution witnesses lying on the stand) claims actually had NO state case law support, it was all based on U.S. Supreme Court case law and therefore entirely based on federal constitutional issues. Therefore, it is beyond ridiculous for judge Micko to claim that the state courts didn't know that was a federal claim.

In my objection, I went through and addressed how each of my claims was raised to the state court and how I supported each of those claims with multiple U.S. Supreme court cases to emphasize that they were all federal claims.

The real question becomes what is the meaning of the words "substance of the claim". I think Coleman v. Thompson, 501 U.S. 722,733(1991) covers this pretty well. It says, " When ... a state court decision fairly appears to rest primarily on federal, OR to be interwoven with federal law, and when the adequacy and independence of any state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so." In my case, the state courts responded to my U.S. Supreme Court case law with a response referencing Brady and Napue and Strickland v. Washington, etc. Clearly, they were aware that the claims were at least 'interwoven' with federal law.

So what does it mean to not meet the exhaustion requirement? Humphrey v. Cady, 405 U.S. 504, 518 n.18 says, "the question ... is whether any of the petitioner's claims are so CLEARLY DISTINCT from the claims he has already presented to the state courts that it may fairly be said that the State courts have had NO OPPORTUNITY to pass on the claim." You can see from this blog that that is not true.

I appreciate your continued interest in my case and if you have additional questions and which to contact me, then please reach out on JPAY to Minnesota inmate Stephen Allwine #256147. 

Personal update to family about the case

Ugh ... my mind is racing today, and I'm a bit upset. Last night I had law library, and I checked to see if Micko had filed anything in my case and nothing showed up, so instead I wrote my letter to the Legislators. As soon as I came back from the law library, the CO says, "Allwine, I have mail for you" and he hands me Micko's Report and Recommendation (R&R). It was postmarked the 30th, which means it probably arrived Monday, and the DOC had all day to deliver it to me on Monday and on Tuesday and they delivered it after I was at the law library. Because this is the R&R, I only have 14 days in which to respond to it. It was filed by Micko on 12/29, which means that I basically need to send my response out today or tomorrow (at the latest). Had I received the R&R Monday or Tuesday (prior to law library) then I could have typed my response at the law library which would have been much easier than typing it on my typewriter. So that was one frustration. However, my bigger frustration is that Judge Micko just chose to ignore every single issue and claim that I am barred from bring the issues to the federal courts.

I raised several issues and for every single one he basically said that while I cited federal law, I didn't cite federal constitutional issues throughout the appellate process by specifically mentioning the portion of the U.S. Constitution that was being violated and therefore, the State didn't have an opportunity to rule on a federal claim. This allowed Micko to ignore the actual legal claims that are being brought forward. That is so wrong!

This has me really upset. My frustration is about my case, obviously, but it is more than that. From the very beginning, I have been reading and researching how to raise the issues in the State court so that they were ripe to bring to the federal court, and based on my reading and research I did it as well as I could be expected to do (with no legal training). At each level, I raised U.S. Supreme Court case law that was being violated, and since those laws invoke U.S. Constitutional issues, it was my understanding that it was sufficient. Now this judge is saying that it is not sufficient and that I needed to actually specify the U.S. Constitutional violation that I felt was being violated. Here's my big issue with this ... I am not a dumb guy, so if through all of my reading and researching I was unable to 'properly' raise an issue with the federal courts, then how can any of these guys ever expect to get any relief at the federal court level?

The other piece that frustrates me is that the judge obviously knows that I am right and doesn't want to release me. I have read enough of these R&R's now that when they are filed by pro se petitioners often what the judge does is say something like, "it is barred, but we are supposed to view pro se filings liberally, so even if it were not barred it would still fail on the legal merits because of _____." Micko did not do that in my case, which tells me that he didn't want to bring up the legal merits, because they would demand my release.

The whole issue of "liberally construing" pro se petitions is supposed to make the system fair, but judges ignore it when they want to. The rule came about because pro se petitioners are not legally trained, so we are not expected to file everything perfectly, we are simply supposed to be able to raise the legal issue and the judges are supposed to help us out with the formalities behind the legal issue. Back 50 years ago, when this rule came out that is what the judges did. I read a number of cases from the 60's and 70's where an inmate filed something and a judge basically said, "petitioner claimed a search violation but that is the wrong claim for his issue; he should have raised the issue under Due Process and as a 6th Amendment violation, and therefore I will analyze it under the 6th Amendment." Somehow from that time to now the courts expect us to be legally perfect with our arguments, yet they have not given us any legal training or guidelines to perfect our arguments.

So like I said ... Ugh!

I will file my objections to the R&R and basically explain that I raised the issues to the best of my ability, but something tells me that the judge will basically ignore that argument and dismiss the petition, and claim that I can't appeal the decision ... which would be difficult to overcome. So the federal claims are a major uphill battle from here.

However, since the majority of the Lanterman stuff is new evidence, I have a chance to do it all again from the postconviction level, and I will adjust how I do it (if I still don't have a lawyer that can help me ... hopefully the innocence projects will step up) ... still it is frustrating to say the least.

Even though I don't think I could've done it any differently based on what I knew, I feel like I let you guys down ... more importantly, I feel like I let Amy down :'( She deserves justice, and no one wants to give it to her.

I know that you are all excited for me to get released, especially with all this Lanterman stuff that is obviously wrong, and I feel like I messed up. It will take a bit to get over that feeling. (sigh)

I appreciate all of your love and support and I will keep fighting. Eventually, the truth will come out.