Evenstad v. Carlson

• Decision Date: 30 November 2006
• Docket Number: No. 05-1467.,05-1467.
• Citation: 470 F.3d 777
• Parties: Thomas Wayne EVENSTAD, Petitioner-Appellant, v. Terry L. CARLSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

470 F.3d 777

Thomas Wayne EVENSTAD, Petitioner-Appellant, v. Terry L. CARLSON, Respondent-Appellee.

No. 05-1467.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2006.

Filed: November 30, 2006.

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Thomas Wayne Evenstad, Stillwater, MN, pro se.

Jenny Chaplinski, Chaplinski Law Office, St. Cloud, MN, for Petitioner-Appellant.

Thomas R. Ragatz, Attorney General's Office Appeals Division, J. Michael Richardson, St. Paul, MN, Amy Jean Klobuchar, Hennepin County Attorney's Office, Minneapolis, MN, for Respondent-Appellee.

Before BYE, ARNOLD and MELLOY, Circuit Judges.

BYE, Circuit Judge.

Thomas Wayne Evenstad was convicted in Minnesota state court of first and third degree criminal sexual conduct for the rape of eighteen-year-old H.S. Evenstad's direct appeal and petition for post-conviction relief were denied. Evenstad appealed the denial of his petition to the Minnesota Court of Appeals, which was denied. He next petitioned the Minnesota Supreme Court, which denied his petition for review. He thereafter petitioned the federal district court¹ for habeas relief under 28 U.S.C. § 2254. The district court dismissed the petition. This court granted a certificate of appealability on two issues. For the reasons discussed below, we affirm the district court.

I

On March 19, 1999, Evenstad was convicted of raping H.S. Evenstad and H.S. both participated in a telephone "chat line" service which permitted users to exchange telephone messages. After hearing several of Evenstad's outgoing messages over the course of several weeks, H.S. contacted Evenstad and made plans to meet him. He picked her up from her aunt's home, drove her to his home, and sexually assaulted her. After the assault, H.S. began leaving messages on the "female side" of the chat line to find other women who had been assaulted by Evenstad. As a result of her inquiry, two Spreigl² witnesses stepped forward: A.M.-1 and A.M.-2. The trial court ruled this testimony admissible and both witnesses testified at Evenstad's trial about prior sexual misconduct by Evenstad, after he met them through chat lines.

Evenstad was found guilty by a trial jury. In a subsequent petition for post-conviction relief, Evenstad argued he was entitled to relief as: 1) he had evidence A.M.-2 presented false trial testimony; and 2) the government violated his due process rights by failing to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The post-conviction court held a hearing to address Evenstad's claims. At the hearing, Evenstad presented testimony from Karen Whalen. She testified her son had dated A.M.-2's best friend Tammy. Over the state's hearsay objection, Whalen testified she heard A.M.-2 say her trial testimony was false. She also testified she did not call the police or inform anyone about this statement prior to speaking with defense investigators.

Evenstad also called another witness, J.A. During the police investigation of Evenstad, J.A. reported Evenstad raped her and the state originally charged him based on those accusations. At the post-conviction hearing, J.A. testified about a photographic lineup conducted by Officer Beth Roberts, the officer assigned to investigate Evenstad. J.A. claimed Officer Roberts conducted an untaped photographic lineup with her and, after J.A. pointed to the wrong photograph, Officer Roberts directed her to Evenstad's photograph. Officer Roberts then conducted the taped lineup during which J.A. identified Evenstad. Throughout the investigation, J.A. provided several contradictory statements to both defense investigators and Officer Roberts. Ultimately, J.A. recanted her story and those charges against Evenstad based on her accusations were dropped. J.A. did not testify at trial and evidence of her identification of Evenstad was not presented at trial. Evenstad's trial counsel acknowledged J.A. had "significant credibility problems." At the post-conviction hearing, J.A. admitted she had lied to the police about Evenstad during the investigation.

The post-conviction court denied relief, concluding Evenstad's newly acquired evidence—Whalen's testimony alleging A.M.-2 had testified falsely—did not warrant a new trial. In doing so it relied on the test for newly acquired evidence articulated in State v. Fedor, 628 N.W.2d 164, 169 (Minn.Ct.App.2001), which applies the test from Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997).³ The post-conviction court found Whalen's testimony was "impeaching and doubtful evidence" and concluded, even if true, the testimony would not have changed the outcome of the trial because A.M.-2 was only one of two Spreigl witnesses. The post-conviction court also found no Brady violation as, even if suppressed, the "one piece of evidence"—the alleged prompting of J.A.—would not have changed the outcome of the trial.

Evenstad appealed to the Minnesota Court of Appeals, which rejected his allegations of error and affirmed the post-conviction court. The state court of appeals found the post-conviction court erred by using the Rainer test. It determined the proper test should have been the test articulated in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.1928), as adopted by the Minnesota Supreme Court in State v. Caldwell, 322 N.W.2d 574, 584-85 (Minn.1982) and Ferguson v. State, 645 N.W.2d 437 (Minn.2002).⁴ The basis for this finding was its re-characterization of Evenstad's claim as one of false trial testimony rather than newly discovered evidence. The state appeals court concluded, however, the post-conviction court's error was harmless, as the fourth prong of the Rainer test was similar to the second prong of the Larrison test and the result would have been the same had the less-stringent Larrison test been applied. It also affirmed the post-conviction court's determination there was no Brady violation as the alleged improper prompting of J.A. was not material. They found there was not a reasonable probability, had this evidence not been suppressed, that the jury would have believed the two Spreigl witnesses were also improperly prompted by Officer Roberts to identify Evenstad. Evenstad's subsequent petition for review to the Minnesota Supreme Court was denied.

Evenstad filed for federal habeas corpus relief alleging several claims including the evidence of false trial testimony and the Brady violation. The district court dismissed the petition. We granted a certificate of appealability limited to Evenstad's claims that: 1) A.M.-2 testified falsely; and 2) the state withheld exculpatory evidence regarding J.A.'s prompted identification in violation of Brady.

II

Our review of Evenstad's claims is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). In the interests of finality and federalism, federal courts are constrained by AEDPA to exercise only a "limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir.2003). The court may not grant a writ of habeas corpus with respect to any issue decided by the Minnesota state courts unless the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court." 28 U.S.C. § 2254(d); see also Liggins v. Burger, 422 F.3d 642, 647 (8th Cir.2005).

A state court decision is "contrary to" clearly established precedent if the state court either "applies a rule that contradicts the governing law set forth [by the Supreme Court]" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court" and nevertheless arrives at a different result. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). A decision is an "unreasonable application of" federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. Furthermore, as the Supreme Court has clarified: "[E]ven if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Id. at 793, 121 S.Ct. 1910. A state court decision involves "an unreasonable determination of the facts in light of the evidence presented in the state court proceedings," 28 U.S.C. § 2254(d)(2), only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Boyd v. Minnesota, 274 F.3d 497, 501 n. 4 (8th Cir.2001).

A

Evenstad first argues the state courts below erred in their treatment of Ms. Whalen's post-conviction testimony. He does not claim the state suppressed this evidence or knew or should have known about this evidence. Instead, he argues both state courts erred in their application of state law and these errors constitute due process violations: 1) the post-conviction court erred in relying on the Rainer test; and 2) the Minnesota Court of Appeals erred in determining this reliance was harmless error. He claims relief under both 28 U.S.C. § 2254(d)(1) and (2).⁵

Like the district court, we lack authority to review the Minnesota state courts' interpretation and application of state law, for "federal habeas corpus relief does not lie for errors of state law . . . [and] it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). In conducting habeas review, a federal court is limited to deciding whether the decisions by the Minnesota courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C....