Dolny v. Erickson

• Decision Date: 19 August 1994
• Docket Number: No. 93-2904,93-2904
• Citation: 32 F.3d 381
• Parties: Keith Richard DOLNY, Appellant, v. Robert A. ERICKSON, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 381

32 F.3d 381

Keith Richard DOLNY, Appellant, v. Robert A. ERICKSON, Warden, Appellee.

No. 93-2904.

United States Court of Appeals Eighth Circuit.

Submitted May 10, 1994.

Decided Aug. 19, 1994.

Jack S. Nordby, Minneapolis, MN, argued, for appellant.

Charles A. Diemer, Hastings, MN (argued) (James C. Backstrom, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, LIVELY, ^* Senior Circuit Judge, and FAGG, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Keith Richard Dolny was convicted of criminal sexual assault against his former stepdaughter, K.S., in Minnesota state court, and sentenced to 43 months in prison. He filed a direct appeal and an appeal from the trial court's refusal to grant post-conviction relief. The Minnesota Court of Appeals consolidated his claims and then rejected them. Dolny did not seek review in the Minnesota Supreme Court; instead, he sought federal habeas corpus relief under 28 U.S.C. Sec. 2254. A magistrate judge recommended that the petitioner's claim be denied, ¹ and the District Court ² agreed. Dolny now appeals to this Court.

The petitioner claims that his Sixth Amendment Confrontation-Clause rights were violated by the introduction of out-of-court statements made by K.S. Dolny contends that these hearsay statements were introduced without sufficient findings as to their reliability and without opportunity for effective cross-examination of the child, whose testimony was presented by videotape. ³ The state replies that Dolny is procedurally barred from asserting his claims, and that, in any event, the trial court's reliability findings were sufficient, particularly given that the child testified in detail and was subject to questioning by petitioner's trial counsel. We conclude that we may properly consider Dolny's claims on the merits, but affirm the District Court's denial of relief.

I.

The hearsay statements which are the subject of this appeal consist of comments made by the child to four individuals who appeared as witnesses at the trial: her mother, Ms. Leslie Martin; her treating psychologist, Dr. Randall Pottebaum; a police officer, Detective Clark Holden; and a county child-protection worker, Mr. Rick Morrissey. These comments, some recorded on audiotape, were made when K.S. was six years old. The statements alleged acts of abuse committed by Dolny on K.S. when the child was four.

Before the statements were allowed into evidence, K.S. testified; ⁴ she appeared first in a pre-trial hearing, then briefly in front of the jury, and, finally, by means of videotape (because she was afraid of Dolny and, to a lesser extent, the jurors). At trial, on direct examination, K.S. initially did not recall many significant details of the abuse, other than Dolny's having sat on her and threatened her. She could not remember how many times the abuse occurred, whether it hurt, how long the incident or incidents lasted, or how much clothing either she or Dolny were wearing. She testified that she remembered talking to her mother and to the police, but she could not remember what she had said to the police until she saw her statement. Eventually, after reading a portion of her statement to the police, she testified in some detail about the incidents of abuse. K.S. also explained why she had given conflicting statements about where the abuse took place within the residence, and why she waited as long as she did to tell anyone.

On cross-examination, defense counsel began by asking K.S. what had happened to her two front teeth; she replied that she had lost them and had put them under her pillow for the tooth fairy. She agreed that it had been a long time since she lived with Dolny. Counsel asked her how many bedrooms and bathrooms there had been in the residence, and whether K.S. had ever bathed with her older brothers, which the child denied. When asked if she goes to see her father, K.S. said that she did and that she enjoyed doing so. Counsel then asked K.S. about her mother's work, and asked who took care of K.S.--then and now--in her mother's absence (during the period of alleged abuse it was Dolny; now it is her brothers). K.S. was then asked if she knew a man named Buzz, and if he was a friend of her mother's; the child answered affirmatively.

Upon further questioning, K.S. agreed that she had spoken with Detective Holden and social worker Morrissey, as well as her mother, about the events to which she had testified. However, she denied having spoken about the abuse to her father. K.S. indicated that she had talked with the prosecutor approximately three times. Finally, defense counsel asked K.S. whether she had bad dreams about Keith doing something to her brothers, to which she replied that she did, and that the dreams included her. She agreed that dreams are not real, but that sometimes she believes them, and they scare her.

Subsequently, during the course of the trial, the Court ruled on the admissibility of the contested statements. The judge made individual findings concerning the reliability of each, prior to its admission. To a large extent, the judge looked to the reliability of the hearsay witness, as opposed to the child's statement, and also considered the consistency among the various statements. In each instance, for substantially similar reasons, the statements were admitted.

II.

Minnesota urges us to reject Dolny's claim without reaching the merits. For its principal reason, the state points to the statute setting out federal habeas corpus remedies, which provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. Sec. 2254(c). Minnesota contends that Dolny is guilty of procedural default, because he did not seek review in the Minnesota Supreme Court, and the time for seeking such review has expired. The magistrate judge, on the other hand, ruled that Dolny was required to pursue only his appeal as of right, and did not have to petition for review by Minnesota's highest court, because such review is discretionary. Minn.R.Civ.App.P. 117, subd. 2.

The question of whether a criminal defendant must seek discretionary review from a state's highest court prior to requesting federal habeas relief remains open in this circuit, although we have strongly hinted that such effort is not necessary. Evans v. Dowd, 932 F.2d 739, 740-41 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 385, 116 L.Ed.2d 335 (1991); Brown v. Armontrout, 898 F.2d 84, 86-87 & n. 5 (8th Cir.), cert denied, 498 U.S. 868, 111 S.Ct. 186, 112 L.Ed.2d 149 (1990). Other circuits are split. Compare Jennison v. Goldsmith, 940 F.2d 1308, 1310 (9th Cir.1991) (per curiam) (petitioner must seek discretionary review in Arizona state courts; "the right to raise" an issue does not entail a right to have that issue considered on its merits) and Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.1985) (petitioner must seek discretionary review in the Texas Court of Criminal Appeals) with Buck v. Green, 743 F.2d 1567, 1569 (11th Cir.1984) (for purposes of Sec. 2254, Georgia defendant who lost appeal as of right need not petition the Georgia Supreme Court for certiorari, given that court's limited jurisdiction).

In Buck, the Eleventh Circuit noted that "the Supreme Court of Georgia does not ordinarily review assignments of error from a judgment of the Court of Appeals," and so did not offer a practical remedy to the petitioner. 743 F.2d at 1569. The Eleventh Circuit then pointed out that Sec. 2254's requirements " 'are rooted in the doctrine of comity,' " and therefore should not be interpreted so as " 'to burden the state system with meaningless petitions for relief to forums which are not intended by state law to consider them.' " Id. at 1569, quoting Williams v. Wainwright, 452 F.2d 775, 777 (5th Cir.1971). Here, the right of a petitioner to have his claim considered by Minnesota's Supreme Court is unquestionably restricted. See Minn.R.Civ.App.P. 117, subd. 2. ("Review of any decision of the Court of Appeals is discretionary with the Supreme Court.") Limited, though non-exclusive, criteria are prescribed for determining which cases to review. ⁵ In practice, less than 25% of petitions for review are granted. Popovich and Miller, Obtaining Review in the Minnesota Supreme Court, 14 Hamline L.Rev. 117, 128 (1990). Thus, the practice in Minnesota is similar to that in Florida, where the Court of Appeal decision is usually "the end of the road." Williams v. Wainwright, 452 F.2d at 776.

We believe that "[t]he right ... to raise" an issue referred to in Sec. 2254 means more than a mere opportunity to seek leave to present an issue; it means a realistic, practical chance to present an issue and have it considered on the merits. Furthermore, we agree with the Eleventh Circuit that concerns of comity are best met by not requiring fruitless and burdensome petitions. An analogy may be found in Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963), which dispensed with the requirement that petitioners had to seek certiorari from the United States Supreme Court before going into federal habeas (overruling Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950)). Thus, we hold that, given the limited jurisdiction of the Minnesota Supreme Court, when a petitioner has presented his claims to the State's Court of Appeals, the petitioner need not take the additional step of seeking discretionary review prior to requesting federal habeas relief. When Dolny presented his claims to the Minnesota Court of Appeals, he afforded "the State a full and fair opportunity to address and resolve the claim on the merits." Keeney v. Tamayo-Reyes, --- U.S. ----, ----, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). Therefore, the District Court was correct in concluding that Dolny could proceed with his ...