Aase v. Roy, Civ. No. 16-3101 (MJD/BRT)

• Decision Date: 01 May 2017
• Docket Number: Civ. No. 16-3101 (MJD/BRT)
• Parties: Jeffrey Nicholas Aase, Petitioner, v. Thomas Roy, Commissioner of Corrections, Respondent.
• Court: U.S. District Court — District of Minnesota

Jeffrey Nicholas Aase, Petitioner, v. Thomas Roy, Commissioner of Corrections, Respondent.

Civ. No. 16-3101 (MJD/BRT)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

May 1, 2017

REPORT AND RECOMMENDATION

Jeffrey Nicholas Aase, 1101 Linden Lane, Faribault, MN 55021, pro se Petitioner.

Greg T. Kryzer, Esq., Assistant Wright County Attorney, counsel for Respondent.

BECKY R. THORSON, United States Magistrate Judge.

This matter is before the Court on Jeffrey Nicholas Aase's pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Aase was convicted on six counts of second-degree criminal sexual conduct involving his minor stepdaughters in Wright County District Court. State v. Aase, No. A13-2200, 2015 WL 648172, at *1 (Minn. Ct. App. Feb. 17, 2015). Petitioner's primary claim is that his privately-retained trial counsel was ineffective due to a conflict of interest, which arose when he applied for a position with the Wright County Attorney's Office four days before trial. (Doc. No. 1, Habeas Pet. 3-6; Doc. No. 2, Mem. of Law in Supp. of Habeas Pet. ("Pet. Mem.").) The Respondent moves to dismiss. (Doc. No. 7.) For the reasons stated below, this Court recommends that Respondent's motion to dismiss be granted.

I. Background

Petitioner's trial commenced on August 13, 2012. (Doc. No. 11, Resp't App. 11.) Four days before trial and without informing Petitioner or the court, Petitioner's privately-retained trial counsel applied for a position at the Wright County Attorney's Office. Aase, 2015 WL 648172, at *1. After evidence closed, trial counsel had lunch with the prosecutor while the jury was deliberating. Id. Trial counsel told the prosecutor that he had applied for the position, and the prosecutor wished him good luck. Id. On August 16, 2012, the jury found Petitioner guilty on all counts. Id.

Approximately eighty candidates applied for the assistant county attorney position. Id. About two weeks after the trial, Petitioner's trial counsel was interviewed along with seven others. Id. Trial counsel received a second interview and accepted an offer of employment. Id. He only worked as an Assistant Wright County Attorney from October 1, 2012 until November 30, 2012. (Resp't App. 13.)

Before Petitioner's sentencing, which was scheduled for November 5, 2012, trial counsel contacted the Minnesota Board of Professional Responsibility about whether he could continue representing Petitioner. (Id. at 13-14.) The Board advised him that a conflict was created by his new position as an Assistant Wright County Attorney. (Id. at 13.) Trial counsel then informed Petitioner that he could not represent him at sentencing. Aase, 2015 WL 648172, at *1. Petitioner moved for a new trial, claiming that his trial counsel had a conflict of interest during his trial. Id. The district court denied this motion after an evidentiary hearing. Id. At sentencing, the district court imposed concurrent sentences of 90 months and 130 months on two of the charges. Id. The court of appealsaffirmed, and the Minnesota Supreme Court denied a petition for review on May 19, 2015. Id. Petitioner filed this action on September 16, 2016. (Doc. No. 1.)

II. Analysis

A. Standard of Review Under AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief will not be granted with respect to any claim adjudicated on the merits in state court proceedings unless such adjudication 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 "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)(1), (2); Davis v. Grandlienard, 828 F.3d 658, 664 (8th Cir. 2016). Under the "contrary to" clause of § 2254(d)(1), "a federal habeas court may grant the writ if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, the writ can be granted "if the state court identifie[d] the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413.

"Clearly established Federal law" includes "only the holdings, as opposed to the dicta, of [Supreme Court] decisions." Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). An "unreasonable application" of those holdings "must be objectively unreasonable, notmerely wrong; even clear error will not suffice." Id. (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)). To satisfy this high bar, a habeas petitioner is required to show that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). "Adherence to these principles serves important interests of federalism and comity. AEDPA's requirements reflect a 'presumption that state courts know and follow the law.'" Woods, 135 S. Ct. at 1376 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). On collateral review of state court convictions, "federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as 'a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'" Id. (quoting Harrington, 562 U.S. at 102-03).

B. Ineffective Assistance of Counsel

A successful ineffective-assistance-of-counsel claim generally requires two showings: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-90 (1984). Under the first prong, Petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (citing Strickland, 466 U.S. at 694). Under the second prong, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedingwould have been different." Id. (citing Strickland, 466 U.S. at 694). "Merely showing a conceivable effect is not enough; a reasonable probability is one sufficient to undermine confidence in the outcome." Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011). "This is a heavy burden." Caban v. United States, 281 F.3d 778, 781 (8th Cir. 2002).

In two pre-Strickland cases, however, the Supreme Court held that "the burden may be lighter for defendants who assert ineffective assistance of counsel because of a conflict of interest involving their attorney." Id. (citing and discussing Holloway v. Arkansas, 435 U.S. 475 (1978) and Cuyler v. Sullivan, 446 U.S. 335 (1980)). In Holloway, the Court "addressed situations where the trial court is made aware of a potential conflict of interest before, during, or in some instances, after trial. Under those circumstances, the Court held the trial court has a duty to conduct a searching inquiry into the possibility of a constitutional violation arising from that conflict." Id. (citing Wood v. Georgia, 450 U.S. 261, 272 n.18 (1981)). If the trial court fails to undertake this inquiry, the conviction is automatically reversed "upon a showing of possible prejudice." Id. (quoting Atley v. Ault, 191 F.3d 865, 873 (8th Cir. 1999)); Holloway, 435 U.S. at 490 ("[A] rule requiring a defendant to show that a conflict of interests—which he and his counsel tried to avoid by timely objections to the joint representation--prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application.").

In Cuyler, the Court "addressed situations where the trial court is never made aware of the conflict of interest." Id. In this situation, the defendant must show that defense counsel "actively represented conflicting interests," Cuyler, 446 U.S. at 350, and that the conflict "adversely affected his lawyer's performance." Id. at 348. If these twofactors are shown, prejudice is presumed. Caban, 281 F.3d at 781 (citing Cuyler, 446 U.S. at 349-50; Glasser, 315 U.S. 60, 76 (1942)). This "almost per se rule of prejudice" applies when a defendant "raises the issue of a conflict of interest for the first time on appeal or in a motion for post-conviction relief. However, the Court has never applied Cuyler's rule of presumed prejudice outside the context of multiple representation of codefendants or serial defendants." Id. at 781-82; see also Morelos v. United States, 709 F.3d 1246, 1252 (8th Cir. 2013) ("Since the decision in Cuyler, both the Supreme Court and [the Eighth Circuit] have cabined the lower burden in establishing prejudice to cases in which the alleged actual conflict of interest arose from counsel jointly representing multiple parties.") (citing Noe v. United States, 601 F.3d 784, 790 (8th Cir. 2010); Mickens v. Taylor, 535 U.S. 162, 174-75 (2002)).

This case does not involve a conflict arising from representing multiple parties. Rather than deciding whether the Cuyler analysis applies to conflicts other than those arising from joint or multiple representation, courts including the Eighth Circuit have tended to sidestep the issue by analyzing the claim under both Strickland and Cuyler. See, e.g., Morales, 709 F.3d at 1252 ("[W]e decline to decide the issue here because we conclude Morelos's claims would fail under the standards of either Cuyler or Strickland."); Noe, 601 F.3d at...