Kruger v. Erickson

• Citation: 875 F. Supp. 583
• Decision Date: 02 February 1995
• Docket Number: Civ. No. 4-94-44.
• Parties: Inmate 115235, C.A. KRUGER, Petitioner, v. Robert ERICKSON, et al., Respondents.
• Court: U.S. District Court — District of Minnesota

875 F. Supp. 583

Inmate 115235, C.A. KRUGER, Petitioner, v. Robert ERICKSON, et al., Respondents.

Civ. No. 4-94-44.

United States District Court, D. Minnesota, Fourth Division.

February 2, 1995.

Clark A. Kruger, pro se.

Asst. Atty. Gen. Thomas Erik Bailey, for defendants.

ORDER

ROSENBAUM, District Judge.

This matter is before the Court on petitioner's objection to the September 16, 1994, Report and Recommendation issued by the Honorable Franklin L. Noel, United States Magistrate Judge. The Magistrate recommended that petitioner's application for a writ of habeas corpus be denied. Petitioner filed his timely objection to the Report, pursuant to Local Rule 72.1(c)(2).

After a de novo review of the record herein, the Court adopts as its Order the Magistrate's Report and Recommendation appended hereto.

IT IS SO ORDERED.

REPORT & RECOMMENDATION

NOEL, United States Magistrate Judge.

THIS MATTER is before the Undersigned United States Magistrate Judge on petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. It has been referred to the undersigned for report and recommendation under 28 U.S.C. § 636 and Local Rule 72.1(c). For the reasons stated below, the undersigned recommends that petitioner's application for writ of habeas corpus be denied.

I. PROCEDURAL AND FACTUAL BACKGROUND.

Petitioner Clark A. Kruger, inmate no. 115235, is currently incarcerated at the Minnesota Correctional Facility at Stillwater ("MCF-STW"), serving a twenty year sentence for kidnapping.¹ See Affidavit of Suzan Huber ("Huber Aff."), para. 3. His scheduled release date is July 10, 2003.² Id.

On February 12, 1991, petitioner filed a § 1983 action in state court claiming that prison officials violated his civil rights. See Affidavit of Thomas Erik Bailey ("Bailey Aff."), para. 2. Prison officials had ordered petitioner to provide them with a blood sample for DNA analysis as required by Minn. Stat. § 609.3461.³ Petitioner argued that taking his blood violated his right to be free from unreasonable searches and seizures and cruel and unusual punishment. Id., Ex. B, p. 1 (State District Court Judge Albertson's Memorandum). He further argued that it violated: his right against self-incrimination, his due process rights and his protection from ex post facto laws. Id.

The district court granted defendants' motion for summary judgment. Id., Ex. B, p. 1 (Order and Order of Judgment). The Minnesota Court of Appeals affirmed. Id., Ex. C. The Minnesota Supreme Court denied further review of the case. Id., Ex. F.

On January 14, 1994, petitioner filed his petition for writ of habeas corpus. He includes the same claims that he alleged in his § 1983 action, with the exception of his self-incrimination claim.

II. CLAIMS PRESENTED.

Petitioner alleges that being ordered to provide a blood sample for DNA analysis violated his rights to be free of unreasonable searches and seizures, and cruel and unusual punishment. He further argues that this violated his due process rights and protection from ex post facto laws.⁴

III. CONCLUSIONS OF LAW.

For the reasons discussed below, the undersigned recommends that petitioner's application for writ of habeas corpus be denied.

A. Exhaustion of State Court Remedies.

A habeas corpus petitioner must demonstrate that he has exhausted his available state remedies before a federal court may consider his request for relief. 28 U.S.C. § 2254(b) and (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). This exhaustion requirement is imposed to ensure that state courts have the initial opportunity to determine petitioner's claims with regard to both state and federal law. Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984). To exhaust his remedies, a state prisoner must present the state courts with the constitutional implications of his petition. Tyler v. Wyrick, 730 F.2d 1209, 1210 (8th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 138, 83 L.Ed.2d 78 (1984); Hall v. Brewer, 656 F.2d 364 (8th Cir.1981). However, exhaustion of state remedies is not required when it appears that such remedies are futile. Hawkins v. Higgins, 898 F.2d 1365 (8th Cir.1990). A decision on the same question of law, under almost identical facts, makes state court remedies futile. Id. (citing Piercy v. Black, 801 F.2d 1075, 1078 (8th Cir.1986)).

In his appeal to the Minnesota Court of Appeals, petitioner challenged the constitutionality of officials taking his blood. On October 19, 1993, the Minnesota Supreme Court denied further review of the dismissal of his complaint. See Bailey Aff., Ex. F. The claims asserted by petitioner in his petition for habeas relief were presented on direct appeal, and the court therefore concludes that petitioner has exhausted his remedies.

B. Standard of Review.

In ruling upon a petition for writ of habeas corpus, the district court is not a trier of fact, except as to facts related to federal constitutional contentions. Smith v. Armontrout, 888 F.2d 530, 539 (8th Cir.1989). A state court's findings of fact will not be set aside if they are fairly supported by the record. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Graham v. Solem, 728 F.2d 1533 (8th Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984); 28 U.S.C. § 2254(d). The Eighth Circuit stated in Smith that:

Questions of guilt or innocence, the degree of the crime, and the justification for the penalty under state law are all to be decided by the state trial court, subject to direct review on appeal. In a sense, then, innocence is irrelevant in a habeas case: the question is rather whether the conviction and sentence are consistent with the federal Constitution, and this question usually turns, in one form or another, on the fairness of the procedure used in the state courts. For an innocent person to be convicted ... is a terrible thing, but unless the federal Constitution has been violated, it is not the concern of the lower federal courts ...

888 F.2d at 539. Federal courts can only overturn the judgment of the state court if it incorrectly applied a matter of constitutional law to the facts in issue. Sumner, 455 U.S. at 594, 102 S.Ct. at 1305. When state court findings have the necessary support, Section 2254(d) requires that the federal courts "face up to any disagreement as to the facts and to defer to the state court." Id. at 597, 102 S.Ct. at 1307; Graham, 728 F.2d at 1540.

C. Petitioner's Due Process Claim.

The Supreme Court has concluded that taking a blood sample for purposes of criminal investigation, when done properly, does not offend the Due Process Clause. In Breithaupt v. Abram, 352 U.S. 432, 433, 77 S.Ct. 408, 409, 1 L.Ed.2d 448 (1957), a state patrolman investigating a collision instructed a physician to take a blood sample from petitioner while he was unconscious. The Court found that "there is nothing `brutal' or `offensive' in the taking of a sample of blood when done, as in this case, under the protective eye of a physician." Id. at 435, 77 S.Ct. at 410. "Due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by the whole community sense of `decency and fairness' that has been woven by common experience into the fabric of acceptable conduct." Id. at 436, 77 S.Ct. at 410. The Court noted that blood tests have become routine in our everyday life. Id. at 436, 77 S.Ct. at 410-11. The Court held that "a blood test taken by a skilled technician is not such `conduct that shocks the conscience' ... nor such a method of obtaining evidence that it offends a `sense of justice.'" Id. at 437, 77 S.Ct. at 411; Schmerber v. California, 384 U.S. 757, 760, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966). But c.f. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (concluding that forcibly pumping a suspect's stomach "shocks the conscience" and "offends a sense of justice" thereby violating the Due Process Clause).

Here, prison officials took blood from petitioner for DNA analysis pursuant to Minn. Stat. § 609.3461. Respondents submitted evidence which shows that the procedures employed by the MCF-STW health services unit are performed according to medically acceptable protocols developed by the Bureau of Criminal Apprehension ("BCA"). See Bailey Aff., Ex. D. at 29-30. Technicians used BCA equipment to take blood samples. Id. On November 7, 1990, trained laboratory technician Rafael Lopez drew blood from Kruger. Id. The court concludes that Kruger's blood sample was taken by a proper method as required under Breithaupt and Schmerber. The procedure employed does not "shock the conscience," nor "offends the sense of justice." Petitioner has failed to state a due process claim for habeas relief.

D. Petitioner's Eighth Amendment Claim.

Confinement in prison is "a form of punishment subject to scrutiny under the Eighth Amendment standards." Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). The Eighth Amendment⁵ prohibits the infliction of cruel and unusual punishment, Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408-09, 51 L.Ed.2d 711 (1977), and prohibits deprivations which are not part of an inmate's sentence, Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). Along with prohibiting barbarous physical punishment, the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain" that are totally without penological justification. Hudson v. McMillian, 503 U.S. 1, ___, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986)); Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981).

Although there is no static "test" for courts to determine...