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.