Kenneth E. Murray v. Sheryl Ramstad Hvass, Commissioner of Corrections , 269 F.3d 896 ( 2001 )

MORRIS SHEPPARD ARNOLD, Circuit Judge.

After the state of Minnesota convicted Kenneth Murray of eleven counts of criminal sexual conduct involving minors, see Minn.Stat. § 609.342, he twice sought relief from his conviction through direct appeal. See State v. Murray, 1992 WL 333617 (Minn.Ct.App. Nov.17, 1992), modified, 495 N.W.2d 412 (Minn.1993) (per curiam), and State v. Murray, 1994 WL 62155 (Minn.Ct.App. Mar.l, 1994). In his second appeal, Mr. Murray, in a separate pro se brief, argued for the first time that his counsel was ineffective at his trial. The Minnesota Court of Appeals, however, declined to address this claim because it was “not litigated at the trial court level,” Murray, 1994 WL 62155 at *2, and was therefore not subject to review on appeal.

Mr. Murray subsequently petitioned the federal district court for habeas corpus relief, again maintaining that he did not receive effective representation from his trial counsel. The district court declined to consider this claim, however, because it found that Mr. Murray had not yet exhausted all of his opportunities for obtaining relief from the Minnesota courts. See Murray v. Wood, 107 F.3d 629, 631-32 (8th Cir.1997). A panel of this court agreed, concluding that Mr. Murray should argue the issue of ineffective assistance of counsel in his state post-conviction petition for relief. See id. at 632.

Mr. Murray returned to the Minnesota courts and moved 'for post-conviction relief, on the ground of the ineffectiveness of his trial counsel. See Murray v. State, 1998 WL 747175 at *l-*2 (Minn.Ct.App. Oct.27, 1998). The Minnesota courts rejected the claim, holding that it was procedurally barred because Mr. Murray did not raise it in his first direct appeal. See id. at *3. Mr. Murray then returned to federal court and petitioned a second time for habeas corpus relief. The district court, adopting a magistrate judge’s detailed report and recommendations, determined that habeas relief was unavailable to Mr. Murray because the state courts had held that his claim was procedurally defaulted. We agree and affirm the judgment of the district court.¹

I.

In evaluating a petition for federal habeas corpus relief, a district court is precluded from considering any issue that a state court has already resolved on an independent and adequate state ground. See Lee v. Kemna, 213 F.3d 1037, 1038 (8th Cir.2000) (per curiam), cert. granted, 531 U.S. 1189, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001). This includes cases in which the state judgment turns on an independent and adequate state procedural ground, such as when a state court has determined that a claim has been lost because of default. See Coleman v. Thompson, 501 U.S. 722, 729-30, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.1996) (en banc), cert. denied, 517 U.S. 1215, 116 S.Ct. 1838, 134 L.Ed.2d 941 (1996). This rule is nearly absolute, allowing exceptions only when a habeas petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law,” Coleman, 501 U.S. at 750, 111 S.Ct. 2546, or when the petitioner can show actual innocence, see Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

In this case, the Minnesota courts determined, in evaluating Mr. Murray’s request for post-conviction relief, that he was procedurally barred from arguing that he received ineffective assistance from counsel at trial because he did not raise the issue during his first direct appeal. See Murray, 1998 WL 747175 at *3. “Under Minnesota caselaw, all matters raised on direct appeal from a conviction, and all claims known but not raised, are precluded from being considered on a subsequent petition for postconviction relief,” id. This includes, absent exceptional circumstances not present here, claims that trial counsel was ineffective. See id.

Mr. Murray contends that it was error for the Minnesota courts to refuse to consider his ineffective assistance argument because a panel of this court, in resolving his first habeas corpus petition, suggested that he might be able to obtain relief in state postconviction proceedings. That panel said that “[b]ecause Minnesota courts will ‘consider[ ] ineffective-assistance claims in post-conviction proceedings even though [the] petitioner did not raise the claims on direct appeal,’ ... we conclude that Murray has not exhausted his state remedies with respect to that claim,” Murray, 107 F.3d at 632, quoting Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992). Mr. Murray now maintains that this statement by our court created a directive that the Minnesota courts were obligated to follow. We disagree.

We reject Mr. Murray’s contention because our court’s previous conclusion, as we read it, cannot be understood as issuing an order to the Minnesota courts. At most, our court, in addressing Mr. Murray’s first habeas petition, determined that his claim was not eligible at that time for federal review because he might yet find relief from the Minnesota courts. The court did not purport to guarantee Mr. Murray that he would have his claim heard on the merits by the state court. Indeed, our court would never undertake to do that, because it is not the province of a federal court to decide whether a matter ought to be considered procedurally defaulted under state law. See Wainwright v. Sykes, 433 U.S. 72, 87, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also May v. State of Iowa, 251 F.3d 713, 2001 WL 515053 at *3 (8th Cir. May 16, 2001).

Mr. Murray also maintains that his ineffective assistance argument deserves federal review because the Minnesota courts, in holding that his claim was procedurally defaulted, applied a rule that they have not consistently followed. He points out, for example, that, as we have already noted, the Minnesota Supreme Court declared in Scruggs, 484 N.W.2d at 25, that “a direct appeal is not the most appropriate way to raise an ineffective-assistance claim.” The Scruggs court also noted that Minnesota courts have previously “considered ineffective-assistance claims in post-conviction proceedings even though [a] petitioner did not raise the claims on direct appeal,” id.; see also Berg v. State, 557 N.W.2d 593, 595 n. 2, 595-96 (Minn.Ct.App.1996).

It is true that a federal court is not barred from reviewing a state judgment on a petition for habeas corpus if that judgment is based on a state rule that is inconsistently followed. See Ford v. Georgia, 498 U.S. 411, 424-25, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). But the general rule in Minnesota, as we have said, is that “where [a] direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief,” State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, 741 (1976). This rule has been consistently followed by Minnesota courts for more than twenty years. See, e.g., Townsend v. State, 582 N.W.2d 225, 227-29 (Minn.1998); Fox v. State, 474 N.W.2d 821, 824-25 (Minn.1991); and Case v. State, 364 N.W.2d 797, 799 (Minn.1985).

After a careful review of the cases that Mr. Murray cites as examples of when the Minnesota rule has not been consistently followed by the courts of that state, we conclude that those cases, in the end, do not support his contention. Under Minnesota law, a procedural default can be overlooked “[i]n limited situations, if fairness so requires and if the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal,” Roby v. State, 531 N.W.2d 482, 484 (Minn.1995), quoting Bangert v. State, 282 N.W.2d 540, 545 (Minn.1979); see also Townsend, 582 N.W.2d at 228. After Scruggs, the Minnesota Supreme Court, in Hale v. State, 566 N.W.2d 923, 926 (Minn.1997), explained that the Scruggs court had simply “exercised its discretion to review in the interests of justice.” In this case, the Minnesota courts evidently concluded that the interests of justice did not warrant excusing Mr. Murray’s procedural default, and this determination is entitled to respect by our court.

Because “[a] federal court conducting habeas corpus review must ordinarily refrain from reviewing any issue that a state court has already found to be defaulted on an adequate and independent state-law basis,” Owsley v. Bowersox, 234 F.3d 1055, 1058 (8th Cir.2000), and because Mr. Murray has not alleged cause and prejudice for his default or that he is actually innocent, we decline to consider the merits of his argument with respect to ineffective assistance of counsel.

We therefore affirm the judgment of the district court.

1 . The Honorable David S. Doty, United States District Judge for the District of Minnesota.