Hooper v. State, No. A03-849.

• Decision Date: 27 May 2004
• Docket Number: No. A03-849.
• Citation: 680 N.W.2d 89
• Parties: Brian Keith HOOPER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

680 N.W.2d 89

Brian Keith HOOPER, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. A03-849.

Supreme Court of Minnesota.

May 27, 2004.

Jeffrey C. Dean, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, Minneapolis, MN, for Respondent.

Considered and decided by the court en banc.

OPINION

PAGE, Justice.

In a jury trial before Hennepin County District Court Judge Patricia Kerr Karasov, Brian Keith Hooper was convicted of three counts of first-degree murder for the 1998 death of Ann Prazniak. Hooper was sentenced to three concurrent life sentences. Hooper's direct appeal was stayed to allow him to seek postconviction relief based on his claim of newly discovered evidence. After Hooper was denied postconviction relief, this court reinstated Hooper's direct appeal and affirmed both his conviction and the postconviction court's denial of relief.¹ State v. Hooper, 620 N.W.2d 31, 40-41 (Minn.2000).

On March 11, 2003, Hooper filed a second petition for postconviction relief that was assigned to Judge Karasov. On March 28, 2003, Hooper's counsel, Jeffrey Dean, filed a notice to remove Judge Karasov and wrote Hennepin County Chief Judge Kevin Burke a letter requesting that the matter be reassigned pursuant to the notice to remove. That same day, Dean met with the chief judge regarding the request for reassignment. On April 15, 2003, the chief judge wrote Dean a letter informing him that the matter would not be reassigned and that his choices were to either proceed with the postconviction proceeding before Judge Karasov or to file a motion to remove her for cause. On May 8, Judge Karasov denied Hooper's petition for postconviction relief without an evidentiary hearing. On May 12, 2003, Hooper filed a motion to remove Judge Karasov for cause. By order filed June 19, 2003, the chief judge denied Hooper's motion to remove Judge Karasov for cause. In the memorandum accompanying the order, the chief judge noted first that, under Minn. R. Crim P. 26.03, subdivision 13(4), "No notice to remove shall be effective against a judge who has already presided at the trial * * * except upon an affirmative showing of cause [on the part of the judge]." The chief judge went on to note that, because Judge Karasov presided at trial, Hooper was required to make an affirmative showing of cause, which he failed to do. Specifically, he noted that there were no facts suggesting that Judge Karasov's "conduct revealed actual bias or the appearance of bias to such a degree that Petitioner was denied a fair hearing."

In this appeal, Hooper makes four arguments: first, Judge Karasov did not have jurisdiction to decide the second petition for postconviction relief due to the pending notice to remove; second, the chief judge wrongly denied his motion to remove Judge Karasov; third, the postconviction court abused its discretion by denying his petition for a new trial based on newly discovered evidence and recanted trial testimony without conducting an evidentiary hearing; and, fourth, his due process and fair trial rights were violated by both the denial of a new trial and by the fact that a biased judge ruled on the second petition for postconviction relief.² We affirm.

Our review of postconviction proceedings is limited to determining whether there is sufficient evidence to support the findings of the postconviction court. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). We will not disturb those findings absent an abuse of discretion. Ferguson v. State, 645 N.W.2d 437, 446 (Minn.2002). In order to receive a new trial, the petitioner must establish by a preponderance of the evidence facts that would warrant re-opening the case. State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001). An evidentiary hearing is required "unless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn.Stat. § 590.04, subd. 1 (2002); see Ferguson, 645 N.W.2d at 446 (stating that a hearing is required when "facts [are alleged] that would, if proved by a fair preponderance of the evidence, entitle [one] to relief").

I.

"No notice to remove shall be effective against a judge who has already presided at the trial, * * * except upon an affirmative showing of cause on the part of the judge." Minn. R.Crim. P. 26.03, subd. 13(4). A postconviction proceeding is an extension of the criminal prosecution. Johnson v. State, 486 N.W.2d 825, 827 (Minn.App.), rev. denied (Minn. Aug. 27, 1992). Therefore, once the parties have already appeared before the judge, there is no automatic removal as of right in a postconviction proceeding. See id., 486 N.W.2d at 827-28.

Here, Judge Karasov presided at Hooper's trial and first postconviction petition and was assigned the second petition. On March 28, 2003, Hooper filed a "Notice to Remove" Judge Karasov, using a form typically used by prosecutors to remove a judge as of right. That same day, Dean spoke with the chief judge, with counsel for the state present, in addition to writing the chief judge a letter requesting that the matter be reassigned pursuant to the notice to remove. According to the letter and an affidavit submitted by Dean, the basis for seeking Judge Karasov's removal was bias on her part. On April 15, 2003, the chief judge wrote Hooper a letter informing him that he would not reassign the matter. The chief judge also informed Hooper that his only options at that point were to either proceed with the postconviction proceeding or to file a motion to remove Judge Karasov for cause. No motion to remove Judge Karasov for cause was forthcoming and on May 8, 2003, Judge Karasov denied Hooper's petition for postconviction relief. On May 12, 2003, Hooper filed a motion to remove Judge Karasov for cause, which the chief judge denied on June 19, 2003. In denying the motion to remove for cause, the chief judge found that "there [were] no facts to suggest that Judge Karasov's conduct revealed actual bias or the appearance of bias to such a degree that [Hooper] was denied a fair hearing."

As indicated, Minn. R.Crim. P. 26.03, subd. 13(4), governs Hooper's two notices to remove Judge Karasov. Under the rule, Hooper's March 28, 2003, notice to remove was properly denied by the chief judge because Judge Karasov had presided at Hooper's trial and there was no automatic right to remove her. We also conclude that Hooper's May 12, 2003, motion to remove Judge Karasov for cause was properly denied. We reach that conclusion for two reasons: (1) the May 12, 2003, motion was not timely; and (2) we are satisfied that the conduct attributed to Judge Karasov does not reasonably support Hooper's claim of actual judicial bias or the appearance of judicial bias.

The chief judge's letter of April 15, 2003, put Hooper on notice that Hooper's postconviction petition was not going to be reassigned and his choices were to either proceed with the petition or move to have Judge Karasov removed for cause. More than three weeks later and almost two months after Hooper's postconviction petition was filed, Judge Karasov denied the petition without a hearing. At the time, no motion to remove, either as of right or for cause, was pending.³ Thus, when Hooper's May 12, 2003, notice to remove for cause was filed, it was not timely.

Normally, having concluded that Hooper's motion to remove for cause was untimely, we would not address the merits of the motion. We choose, however, to do so here. A motion to remove for cause is committed to the discretion of the trial court and this court will reverse only for an abuse of that discretion. Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990). A motion to remove a judge for cause is procedural and is therefore governed by the rules of criminal procedure. State v. Azure, 621 N.W.2d 721, 724 (Minn. 2001). Under the rules, "[n]o judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct." Minn. R.Crim. P. 26.03, subd. 13(3). The Code of Judicial Conduct provides that judges shall disqualify themselves "in [ ] proceeding[s] in which [a] judge's impartiality might reasonably be questioned." Minn.Code Jud. Conduct, Canon 3(D)(1). While removal is warranted when the judge's impartiality might reasonably be questioned, a petitioner's subjective belief that the judge is biased does not necessarily warrant removal. State v. Laughlin, 508 N.W.2d 545, 548 (Minn.App.1993).

Hooper argues Judge Karasov was biased because she was angry that Hooper had filed an affidavit from an alternate juror with this court in which the alternate juror said that Judge Karasov stated that she thought the state did not have a case against Hooper. Dean contends that Judge Karasov's anger is manifested by her hostile body language toward him and the fact that Judge Karasov would not discuss the matter with him at a social function.

Hooper's motion to remove Judge Karasov for cause has little merit. In exercising his discretion in denying Hooper's motion, the chief judge indicated that Judge Karasov's refusal to discuss the matter may have been an effort to avoid a potentially inappropriate ex parte communication. In that Judge Karasov had presided at trial and any subsequent postconviction proceedings would likely be assigned to her, any ex parte communications with Dean discussing matters related to Hooper's trial would have been inappropriate. Further, as the chief judge pointed out, other courts have concluded that the fact that a judge displays irritation toward or disapproval of counsel does not ordinarily justify disqualification. See Nat'l Union Fire Ins. Co. v. Cont'l Illinois Corp., 639 F.Supp. 1229, 1236 (N.D.Ill.1986) (noting that antipathy towards counsel is no reason for disqualification); see also In re Cooper, 821 F.2d 833, 844 (1st Cir.1987) (stating that judge's statement...