589 F.3d 976 (8th Cir. 2009), 09-1256, Moussa Gouleed v. Wengler

Docket Nº:09-1256.
Citation:589 F.3d 976
Opinion Judge:MURPHY, Circuit Judge.
Party Name:Said MOUSSA GOULEED, Petitioner-Appellant, v. Timothy WENGLER, Respondent-Appellee.
Attorney:Michael Francis Cromett, argued, St. Paul, MN, for appellant. Mitchell Lewis Rothman, argued, St. Paul, MN, for appellee.
Judge Panel:Before MURPHY, SMITH, and BENTON, Circuit Judges.
Case Date:December 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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589 F.3d 976 (8th Cir. 2009)

Said MOUSSA GOULEED, Petitioner-Appellant,


Timothy WENGLER, Respondent-Appellee.

No. 09-1256.

United States Court of Appeals, Eighth Circuit.

December 23, 2009

Submitted: Nov. 18, 2009.

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[Copyrighted Material Omitted]

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Michael Francis Cromett, argued, St. Paul, MN, for appellant.

Mitchell Lewis Rothman, argued, St. Paul, MN, for appellee.

Before MURPHY, SMITH, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Said Moussa Gouleed was tried in Minnesota state court for the unintentional felony murder of his infant daughter. After Gouleed's expert witness revealed at trial that he had tested autopsy evidence in a manner not previously disclosed to the prosecution, a mistrial was declared over Gouleed's objection. Gouleed was retried and convicted. The Minnesota Court of Appeals vacated his conviction on double jeopardy grounds, but the Minnesota Supreme Court reversed and reinstated it. Gouleed then petitioned for a writ of habeas corpus, which the federal district court 1 denied. Gouleed timely appealed. We affirm.


While his wife was away, Gouleed was caring for his six week old daughter Faduma on the evening of November 8, 2002. His wife returned home shortly after 9

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p.m. to find him cradling the infant who was not breathing. Paramedics were summoned, and Faduma was rushed to the hospital. Attempts to revive her were unsuccessful and she was pronounced dead around 11 p.m. Gouleed told police that he tripped while carrying Faduma and dropped her, causing her head first to hit the floor and then the wall.

The Ramsey County medical examiner, Dr. Michael McGee, performed an autopsy on Faduma and found a number of significant injuries, some of which were new and some of which appeared older. The injuries included fractures to her skull, arms, legs, and ribs as well as multiple contusions on her head, face, chest, and arms. Dr. McGee did not believe that the fall Gouleed described could have caused the head trauma that killed Faduma. He concluded instead that the injuries were the result of child abuse and that the death was a homicide.

Gouleed retained a forensic pathologist, Dr. John Plunkett, to offer an opinion about the cause of Faduma's death. Based on the autopsy evidence and other records, Dr. Plunkett concluded that significant portions of Faduma's head injuries had been sustained several days before November 8. In his opinion the prior injuries had rendered Faduma extremely fragile so that even a minor fall could have killed her. Gouleed's theory of defense was that his two and a half year old son had caused the underlying injuries which ultimately led to Faduma's death.

Dr. Plunkett's conclusion that Faduma's head injuries were several days old was based on the results of iron stains he had applied to microscope slides containing samples from Dr. McGee's autopsy.2 The parties were originally unaware that Dr. Plunkett had altered the slides. Although he discussed the inferences he had drawn from the iron stains in both his report and in a pretrial interview with the prosecution, he did not reveal before trial that he was the one who had applied the stains. When Dr. Plunkett testified at trial that he had applied the iron stains, the state moved to strike all of his testimony. Gouleed opposed the motion, for Dr. Plunkett was his only witness and his sole evidentiary support for his defense. The trial court remarked that the undisclosed iron stains went to " the very essence of [the] case." State v. Gouleed, 720 N.W.2d 794, 798 (Minn.2006). It then took a recess to consider the state's motion and allow the parties to discuss possible remedial steps.

Upon reconvening, the trial judge indicated that he was inclined to declare a mistrial, but he took a second recess to allow the parties to consider the options of a mistrial or a continuance. When they reconvened, the parties put their conflicting positions on the record. Gouleed opposed a mistrial, arguing for a continuance instead, which would give the state adequate time to allow Dr. McGee to review Dr. Plunkett's iron stains and prepare a rebuttal. The state argued that a continuance was an inadequate remedy because no rebuttal could dissipate the impression that the state had failed to perform important tests on the evidence and had been forced to improvise a response to Dr. Plunkett's testimony.

The court declared a mistrial after concluding that a curative jury instruction would be inadequate and that striking Dr.

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Plunkett's testimony would decimate Gouleed's defense. The judge explained the dilemma to the jury: " I saw no way that I could tell you to disregard certain portions of the testimony. Nor do I think it would have been fair to the defendant to disqualify his expert. He would have been left without any expert." Id. at 799 (alteration omitted).

Before his second trial, Gouleed moved to dismiss the charge on the ground of double jeopardy. The trial court denied this motion, declaring that " the state was deprived of a fair trial when the defense did not provide full disclosure of its expert's basis for opinions going to the very heart of the issue-the age of the injuries." Id. (alteration omitted). Gouleed was convicted and sentenced to 225 months in prison. The Minnesota Court of Appeals vacated his conviction after concluding that the mistrial had not been justified by manifest necessity and that the retrial had therefore been unconstitutional.

The Minnesota Supreme Court reversed and reinstated Gouleed's conviction. It observed that " before trial, Dr. Plunkett deliberately and repeatedly avoided revealing that he had conducted additional testing on the autopsy samples, a violation of the spirit and letter of the [Minnesota] discovery rules." Id. at 801. The supreme court agreed with the trial judge's conclusion that the discovery violation had severely compromised the fairness of the first trial. It further concluded that the trial judge had adequately considered the alternatives before declaring a mistrial, id. at 802, and that Gouleed's retrial had thus not violated the double jeopardy clause. Id.

Gouleed then petitioned the federal district court for a writ of habeas corpus. The district court denied the petition, concluding that the decision of the Minnesota Supreme Court comported with clearly established federal law. It nonetheless granted Gouleed's application for a certificate of appealability, and Gouleed timely appealed to this court.

Gouleed's appeal raises no disputed issues of material fact, and we therefore review de novo the district court's denial of habeas corpus relief. Raymond v. Weber, 552 F.3d 680, 683 (8th Cir.2009).


Gouleed is not entitled to habeas relief unless he shows that the decision of the Minnesota Supreme Court " was contrary to, or...

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