Turnage v. Fabian

• Decision Date: 07 June 2010
• Docket Number: No. 09-1668.,09-1668.
• Parties: Quanartis TURNAGE, Appellant,v.Joan FABIAN, Minnesota Commissioner of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

606 F.3d 933

Quanartis TURNAGE, Appellant,v.Joan FABIAN, Minnesota Commissioner of Corrections, Appellee.

No. 09-1668.

United States Court of Appeals Eighth Circuit.

Submitted: Feb. 9, 2010.

Filed: June 7, 2010.

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Jonathan P. Schmidt, argued, Daniel John Supalla, on the brief, Minneapolis, MN, for appellant.

Nicole Erin Nee, Assistant Dakato County Attorney, argued, Hasting, MN, James C. Backstrom, Dakota County Attorney, on the brief, Hastings, MN, Lori Swanson, AG, on the brief, St. Paul, MN, for appellee.

Before LOKEN, Chief Judge,¹ COLLOTON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

The petitioner, Quanartis Turnage, was convicted of first-degree murder in connection with the death of Wa Vang, a twenty-one-year-old man whose body was discovered in a field next to a commercial storage facility in West St. Paul, Minnesota. The petitioner's co-defendants, Quantez Turnage (his brother, whom we will call “Quantez”) and Damien Robinson (his friend and former roommate), both pled guilty to second-degree murder and testified as State's witnesses at the petitioner's trial. Quantez and Robinson each minimized his own role in the murder and asserted that the other two men had attacked and killed Vang. The state trial court sentenced the petitioner to life in prison without the possibility of parole. On direct appeal, the Minnesota Supreme Court affirmed the petitioner's conviction and sentence. Turnage v. State (Turnage I), 708 N.W.2d 535 (Minn.2006).

While the direct appeal was pending, Quantez recanted his trial testimony in a handwritten affidavit, which reads as follows:

This letter is written to inform that the testamoney [sic] given at the trail [sic] of Quanartis Turnage was lies given only because of a promise of less time. I was told what needed to be said and said it because I feared if I did not I'd recieve [sic] a life sentence. After sitting and reflecting on what I did I feel it is only right that I at least try to fix this situation.

Quanartis Turnage had no knowlage [sic] of this crime other then [sic] what I told him after it became public.

No one has in anyway [sic] made or persuaded me to write this. I just feel its [sic] the right thing to do.

After the Minnesota Supreme Court decided Turnage I, the petitioner sought postconviction relief based on his brother's recantation. The trial court denied the petitioner's request for a new trial without holding an evidentiary hearing, and the Minnesota Supreme Court affirmed State v. Turnage (Turnage II), 729 N.W.2d 593 (Minn.2007).

The petitioner then filed this action in federal district court under 28 U.S.C. § 2254, seeking a writ of habeas corpus. The case was assigned to a magistrate judge, who recommended granting an evidentiary hearing to determine whether the state courts violated the petitioner's federal constitutional rights in denying postconviction relief based on Quantez's recantation. The district court ² rejected this recommendation and dismissed the petition in its entirety. The district court did, however, grant a certificate of appealability see 28 U.S.C. § 2253(c), on the question whether “the state court erred by failing to hold an evidentiary hearing on the credibility of the eyewitness's [ i.e., Quantez's] recantation of his trial testimony.”

Before seeking habeas corpus relief under § 2254, a prisoner ordinarily must “fairly present” his federal claims to the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). This requirement serves the salutary purpose of giving states the “opportunity to pass upon and correct alleged violations of [their] prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (internal quotation marks omitted) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). The onus rests on the prisoner to present the substance of his federal claims “in each appropriate state court (including a state supreme court with powers of discretionary review).” Baldwin, 541 U.S. at 29, 124 S.Ct. 1347; see also Henry, 513 U.S. at 365-66, 115 S.Ct. 887 (“If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). It is not enough to recite “only ... the facts necessary to state a claim for relief,” Gray v. Netherland, 518 U.S. 152, 163, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (citing Picard, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438), or to “make a general appeal to a constitutional guarantee as broad as due process,” id. (citing Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam)). Likewise, “[m]ere similarity between ... state law claims and ... federal habeas claims is insufficient” to satisfy the fair presentation requirement. Carney v. Fabian, 487 F.3d 1094, 1097 (8th Cir.2007) (alteration in original) (quoting McCall v. Benson, 114 F.3d 754, 757 (8th Cir.1997)). Thus, we have held that “[i]n order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts.” Id. at 1096 (internal quotation marks omitted) (quoting McCall, 114 F.3d at 757). If a prisoner fails to present his federal claims to the state courts, those claims are generally considered procedurally defaulted. See, e.g., Barrett v. Acevedo, 169 F.3d 1155, 1161 (8th Cir.1999) (en banc) (citing Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.1996) (en banc)).

The dispositive question in this case is whether the petitioner presented any federal claims to the Minnesota Supreme Court on appeal from the trial court's denial of postconviction relief. We find that the answer is “no.” Simply comparing the arguments made in the petitioner's briefs to this court and the arguments made in the petitioner's brief to the Minnesota Supreme Court shows that the petitioner is attempting to raise a new claim in federal court that he failed to present in state court.

The petitioner's briefs to this court contain three principal arguments, which appear to be variations on a single federal claim: namely, that the denial of his requests for postconviction relief either directly violated or failed to remedy an existing violation of his due process rights under the Fourteenth Amendment. The first argument centers on a line of cases, stretching back to Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam), in which the U.S. Supreme Court has held that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (footnotes omitted). See also, e.g., Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The petitioner contends that applying the rule prohibiting the knowing use of perjured testimony to the facts revealed in Quantez's affidavit demonstrates that he is entitled to a new trial, or at least an evidentiary hearing. ³

The petitioner's second argument builds on the first. While the precise contours of this argument are difficult to define, the crux seems to be that precedents such as Pyle and Giglio establish that an evidentiary hearing must be held to test the verity of a witness's recantation, at least in circumstances where the recantation introduces the possibility of a due process violation.⁴ Therefore, according to the petitioner the state courts were obligated under federal law to hold an evidentiary hearing to assess Quantez's recantation, or to grant his request for a new trial outright.

The petitioner's third argument posits that the Minnesota Supreme Court deprived him of due process in his appeal from the denial of postconviction relief by applying the test set out in Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Under Larrison, as it has been interpreted by the Minnesota Supreme Court, a prisoner may be granted a new trial based on a witness's recantation if two conditions are met: “(1) the court is reasonably well-satisfied that the testimony given by a material witness was false; [and] (2) ... without the testimony, the jury might have reached a different conclusion.” ⁵ Turnage II, 729 N.W.2d at 597 (ellipsis in original) (quoting Williams v. State, 692 N.W.2d 893, 896 (Minn.2005)). The petitioner notes that a majority of federal courts of appeals, including the Seventh Circuit (where Larrison originated), have rejected the Larrison test in favor of a “probability” test, which we have said “require[s] a petitioner seeking a new trial to show [that] the jury would have ‘probably’ or ‘likely’ reached a different verdict had the perjury not occurred,” Evenstad v. Carlson, 470 F.3d 777, 783 n. 6 (8th Cir.2006) (collecting cases from the First, Second, Fourth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits). But see id. (collecting cases from the Third, Fourth, and Sixth Circuits that apply the “might have” or “possibility” standard set out in Larrison ).⁶ Based on this trend away from Larrison in the federal courts of appeals, combined with the purported similarity between the “probability” test and the “any reasonable likelihood” standard that applies to the knowing use of perjured testimony, the petitioner suggests that the Minnesota Supreme Court should have repudiated the Larrison test and granted him relief.⁷

The petitioner's brief to the...