McGinnis v. Jansen
| Decision Date | 25 July 2022 |
| Docket Number | 19-cv-2376 (NEB/TNL) |
| Parties | Demetreus Anthony McGinnis, Petitioner, v. Vicki Jansen, Respondent. |
| Court | U.S. District Court — District of Minnesota |
Robert H. Meyers, Assistant Federal Defender, Office of the Federal Defender, (for Petitioner); and
Michael J. Lieberg, Chief Deputy County Attorney, Stearns County Attorney's Office, (for Respondent).
REPORT & RECOMMENDATION
This action has been referred to the undersigned magistrate judge for a report and recommendation to the Honorable Nancy E Brasel, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636 and Local Rule 72.1. This matter comes before the Court following a remand for further consideration by the district court. See generally McGinnis v. Jansen, No. 19-cv-2376 (NEB/TNL), 2020 WL 5768848 (D. Minn. Sept. 28, 2020) [hereinafter Order on R&R].[1] This Order assumes a familiarity with both the district court's Order on Report and Recommendation, see generally Order on R&R, 2020 WL 5768848, and the Court's prior Report & Recommendation, see generally McGinnis v. Jansen, No. 19-cv-2376 (NEB/TNL), 2020 WL 5775849 (D. Minn. June 19, 2020) [hereinafter R&R],[2] adopted in part and remanded in part, Order on R&R, 2020 WL 5768848 (D. Minn. Sept. 28, 2020). Petitioner is represented by Assistant Federal Defender Robert H. Meyers. Respondent Vicki Jansen is represented by Chief Deputy County Attorney Michael J. Lieberg. For the reasons set forth below, this Court recommends that the Petition be denied and this action be dismissed with prejudice.
Petitioner's remaining grounds for habeas relief claim ineffective assistance of appellate counsel for failing to obtain the redacted and unredacted versions of his statement to law enforcement and to raise on direct appeal the prosecutor's use of his statement and references to his post-arrest silence at trial.[3] Order on R&R, 2020 WL 5768848, at *4; R&R, 2020 WL 5775849, at *11; see ECF No. 34 at 3 [hereinafter Post-Remand Order].
“Following an incident in which [a guy] was shot and killed at around noon on March 13, 2014, [Petitioner] gave a statement to police at 2:35 p.m.” McGinnis v. State, No. A17-1674, 2018 WL 3097169, at *1 (Minn.Ct.App. June 25, 2018) [hereinafter McGinnis II]. There is no dispute that Petitioner was read his Miranda[4] rights before speaking with police. See Tr. 1024; see also Pet'r's Suppl. Br. at 2-3, ECF No. 49.
Petitioner told police that he “met with two guys in a car to sell them something.” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 2, ECF No. 6-3. “One of the guys got into [Petitioner's] car, handed [Petitioner] fake money, and then started to leave the car.” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 2. Petitioner grabbed the guy's arm. Unredacted Stmt. at 2. “When [Petitioner] grabbed the guy's arm, the guy turned around, hit [Petitioner] in the face, and started running.” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 2. “[Petitioner] chased [the man], and the guy pulled out a gun before hitting [Petitioner] some more.” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 3. “The two wrestled, and the second guy joined the fray; both guys were kicking and kneeing [Petitioner].” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 3. “The gun went off twice, and after it went off the second time, one of the guys said ‘somethin' like oh, s—t.'” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 3. One of the guys then “grabbed the gun, which was lying on the ground, pointed it at [Petitioner], and the gun just clicked.” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 3. Afterwards, “the two guys drove away.” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 3. “During the police interview, [Petitioner] said, ‘I know that he got hit.'” McGinnis II, 2018 WL 3097169, at *1; accord Unredacted Stmt. at 3.
Petitioner was also asked some demographic questions during the interview. See Unredacted Stmt. at 4-6. Among these questions were whether he had a cell phone. Unredacted Stmt. at 5. Petitioner told police that he was in the process of replacing his phone and did not have one right now. Unredacted Stmt. at 5. When asked for his phone number, Petitioner told police that he used his girlfriend's phone and provided her phone number. Unredacted Stmt. at 6. When asked if he had spoken with his girlfriend lately, Petitioner told police that he had not. Unredacted Stmt. at 6.
“Petitioner proceeded to a jury trial.” R&R, 2020 WL 5775849, at *1. The prosecution's theory of the case was that this was a drug deal gone wrong. See, e.g., Tr. 870-77, 911-13, 962-64, 968, 973-79, 985, 988-90, 1080-91, 1097-1104, 1108-09, 1135, 1206-10, 1219, 1222, 1260-69, 1491, 1506, 1567; see also Tr. 1037, 1068-70, 1543-44, 1552-56, 1559; cf. Tr. 996, 999, 1146-48. The case primarily came down to who shot who. See, e.g., Tr. 1103-10, 1148-52, 1562, 1507, 1510, 1569, 1575-76; see also Tr. 1217-18. Witness credibility was a recurrent theme. See, e.g., Tr. 606, 618, 621-22, 648, 916, 941, 983-85, 988-90, 998, 1002, 1004, 1006-11, 1062, 1131, 1136, 1142, 1144, 1150-51, 1160, 1202, 1252, 1489, 1492, 1544, 1551, 1557, 1559, 1587, 1593, 1597.
During his opening statement, the prosecutor highlighted what Petitioner did not tell police in his statement. Tr. 600. The prosecutor told the jury that Petitioner did not mention “a female” had set up the sale transaction or that Petitioner had been riding around with a friend of his in the two hours after the shooting. Tr. 600; see Tr. 601. The prosecutor also pointed out that Petitioner told law enforcement that he did not have a phone and used his girlfriend's phone and that he had not had contact with his girlfriend that day. Tr. 600; see Tr. 601. The prosecutor told the jury that Petitioner called up the woman who set up the transaction after the shooting, and met up with her after the shooting before he spoke with police. Tr. 600-01. The prosecutor explained that law enforcement “f[ound] out two days later the details of this because [Petitioner] didn't tell us this.” Tr. 601. The prosecutor went on:
When [Petitioner] is telling us that he's the victim and got jumped and he got his property stolen, did he call 911? Did he report that he had been robbed? Did he report that he had been assaulted? Did he call in that there had been a shooting and I'm not the guy who did it? Not for two hours and not the full story of what he was doing in the meantime.
The prosecutor again returned to what Petitioner did and did not tell law enforcement:
[W]hen [Petitioner] showed up after that time he doesn't tell the police a simple [sic] word about any female being involved in the deal, meeting with a female at Holiday, buying her phone, not bringing her phone. Doesn't have his own phone. Says he really doesn't have a phone. He was in contact with [the female] that morning with his own phone and you'll hear from his girlfriend he had a phone.
“At trial, witnesses testified that this was a drug transaction gone bad and Petitioner became upset when he was paid with counterfeit money.” R&R, 2020 WL 5775849, at *1 (citing State v. McGinnis, No. A15-1043, 2016 WL 3659127, at *1 (Minn.Ct.App. July 11, 2016) [hereinafter McGinnis I]). “Witnesses testified that Petitioner pointed a gun at the decedent, a struggle ensued, and the decedent was shot.” Id.
During the prosecutor's case-in-chief and prior to Petitioner's testimony, the prosecutor asked the Sartell-based investigator whether he “received any information, a phone call or a 911 call from [Petitioner]” in the aftermath, to which the Sartell investigator testified, “No, we had not.” Tr. 864; see also Tr. 934.
In talking about the investigation and conversation law enforcement had with an individual who was with the decedent at the time of the shooting, the Sartell investigator testified that “a female individual,” subsequently identified as G. M., was named as someone who had information regarding what had transpired. Tr. 864-66. The Sartell investigator testified that G. M. came and spoke with law enforcement approximately two days after the shooting. Tr. 865-66; see generally Tr. 909-32. The prosecutor asked the Sartell investigator whether, to his knowledge, Petitioner had “give[n] us any information about a female?” Tr. 878. The Sartell investigator testified that Petitioner had not. Tr. 878.
The prosecutor later went into some detail about the statements G. M. had given to law enforcement, including that she had met with up with Petitioner and a friend of his, C. B., after the shooting. See, e.g., Tr. 916-17, 918-19, 921, 922; see generally Tr. 90932. The prosecutor asked the Sartell investigator whether Petitioner had “told us anything about meeting up with [C. B.] after the shooting.” Tr. 921. The Sartell investigator testified that Petitioner had not. Tr. 921. The prosecutor similarly asked whether Petitioner told law enforcement about meeting up with G. M. after the shooting, and the Sartell investigator testified that he had not. Tr. 926.
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