“An error is harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to the error.”
How later courts described this case
- “An error is harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to the error.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Willie B. Brown, Case No. 24-cv-398 (SRN/SGE)
Petitioner,
MEMORANDUM OPINION AND
v. ORDER
William Bolin, Warden, Minnesota
Correctional Facility - Stillwater,
Respondent.
Willie B. Brown, OID # 233827, MCF-Stillwater, 970 Picket St. N., Bayport, MN 55003,
Pro Se Petitioner.
Adam E. Petras, Hennepin County Attorney’s Office, A-1500 Government Center, 300 S.
6th St., Minneapolis, MN 55487; Edwin William Stockmeyer, III, and Thomas R. Ragatz,
Minnesota Attorney General’s Office, 445 Minnesota St., Ste. 1800, St. Paul, MN 55101,
for Respondent.
SUSAN RICHARD NELSON, United States District Judge
I. INTRODUCTION
This matter is before the Court on Petitioner Willie B. Brown’s Objections [Doc.
No. 18] to United States Magistrate Judge Shannon G. Elkins’ January 3, 2025 Report and
Recommendation [Doc. No. 17] (“R&R”), and Mr. Brown’s Request for an Evidentiary
Hearing [Doc. No. 20]. The magistrate judge recommended that Petitioner’s 28 U.S.C. §
2254 Petition for a Writ of Habeas Corpus by a Person in State Custody [Doc. No. 1]
(“Petition”) be denied, the action be dismissed with prejudice, and a Certificate of
Appealability be denied. (R&R at 18.) For the reasons set forth below, Petitioner’s
objections are overruled, the Court adopts the R&R, as modified, denies a Certificate of
Appealability, and dismisses this matter with prejudice.
II. BACKGROUND
The factual and procedural background of this matter is well documented in the
R&R and is incorporated herein by reference. This Court will recite background facts only
to the extent necessary to rule on Petitioner’s objections.
Mr. Brown seeks habeas relief following his January 20221 conviction for second-
degree murder in Hennepin County District Court. (Resp’t App. (“R.A.”) [Doc. No. 12-2]
at 1423, 1536–37.)
A. First Trial and Appeal
In 2018, a Hennepin County jury convicted Mr. Brown of the second-degree murder
of victim D.H., as well as for a drive-by shooting and second-degree assault that occurred on
the same day as D.H.’s murder. See State v. Brown, Nos. A19-0409, A19-1493, 2020 WL
4932785, at * 1–2, 9 (Minn. Ct. App. Aug. 24, 2020) (“Brown I”). Mr. Brown appealed his
conviction. The Minnesota Court of Appeals found the charges were erroneously joined for
trial. Id. at *6–7 (“Because the offenses were committed at different times, at different
locations, and for different purposes, and because joining the offenses unfairly prejudiced
Brown, we reverse the district court’s decision and remand for separate proceedings on each
1 The R&R refers to Mr. Brown’s retrial for second-degree murder occurring in July
2021. (R&R at 2.) However, the record indicates the trial was held between January 11,
2022 and January 28, 2022. (R.A. at 368–1543.)
2
of the two court file numbers.”). In reaching its decision on whether joinder was prejudicial
to Mr. Brown, the Minnesota Court of Appeals considered the admissibility of “hypothetical
Spreigl evidence,” i.e., the admissibility of drive-by-shooting/second-degree assault evidence
in the murder trial. Id. at *10 (citing state court authority that “joinder is not prejudicial if
evidence of each offense would have been admissible Spreigl evidence in the trial of the
other.”) (citation omitted). It found that a district court would “commit error if it admitted the
evidence of the drive-by-shooting/second-degree assault in the trial for D.H.’s murder.” Id.
at *11. In deciding whether to remand for retrial or to remand for entry of judgment of
acquittal, the Minnesota Court of Appeals found that the state had presented sufficient
evidence of Mr. Brown’s guilt to warrant retrial. Id. at *16.
B. Second Trials and Appeal
On remand, Mr. Brown first proceeded to trial on the drive-by-shooting and second-
degree assault charges. See State v. Brown, No. A22-0621, 2023 WL 3806696, at *1 (Minn.
Ct. App. June 5, 2023) (“Brown II”). Following Mr. Brown’s conviction on both charges,
prosecutors then moved to admit Spreigl2 evidence related to those convictions in Mr.
Brown’s separate retrial for second-degree murder. Id. Mr. Brown objected, pointing to
Brown I, and arguing that such evidence was inadmissible under the law-of-the-case doctrine.
2 In Minnesota state courts, evidence of a defendant’s other crimes or prior bad acts
is referred to as “Spreigl evidence” pursuant to State v. Spreigl, 139 N.W.2d 167 (Minn.
1965). Such evidence may be admissible under Minn. R. Evid. 404(b) as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
3
Id. The district court granted the state’s motion in part and permitted the prosecution to offer
limited evidence of the drive-by shooting in the remanded murder trial. Id.
Also, before trial, Mr. Brown moved for dismissal, arguing that the state had engaged
in an illegal search of his body by obtaining a blood draw. Id. at *7. While the trial court
suppressed the evidence obtained from the blood draw, it found that the search did not warrant
dismissal of the murder charge. Id.
At trial, Mr. Brown represented himself and testified on his own behalf, denying that
he had killed D.H. Id. at 1–2. The Minnesota Court of Appeals summarized the evidence as
follows:
Around 4:00 a.m. on April 26, 2018, T.F. woke up when she heard an argument
outside her Minneapolis home. T.F. stepped outside and saw her cousin, D.H.,
get into D.H.’s car, a black Chevrolet Impala. D.H. was driving and Brown
was in the passenger’s seat when the car drove away. T.F. knew D.H. and
Brown; they visited her home almost every day.
At 5:06 a.m., police responded to a ShotSpotter2 alert about one mile from
T.F.’s home. The responding officer discovered D.H.’s body with three
gunshot wounds; D.H. was pronounced dead at the hospital. An autopsy
revealed D.H.’s death resulted from a gunshot wound to his neck, where a
bullet struck his carotid artery. Law enforcement recovered three casings in
proximity to where the officer found D.H.’s body.
Also[,] during the early morning of April 26, 2018, T.F. dropped a family
member off, returned home at about 5:20 a.m., and saw Brown with an
“extended clip hanging out” of his pocket on the porch of her home. T.F. left
and returned home again at 6:00 a.m., when she saw Brown near D.H.’s black
Impala.
Around 6:50 a.m., a car-wash surveillance camera recorded Brown in D.H.’s
black Impala. Brown used a “hose sprayer” to wash D.H.’s black Impala. The
video recording, which was received into evidence and played for the jury,
showed Brown with a jacket and carrying black shoes and, later, without a
jacket. The shoes and jacket in the car-wash recording were later found at the
car wash and determined to have traces of D.H.’s blood.
4
At about 7:00 a.m., T.F. saw Brown drive D.H.’s car on the street outside her
home; Brown was holding a gun. T.F. testified that Brown fired the gun. T.F.
dialed 911, as she had earlier that morning to report seeing Brown with an
extended clip. Police responded, and, while officers were present, Brown
approached T.F.’s home on foot from the backyard. Police arrested Brown.
Two witnesses reported seeing Brown arrive near T.F.’s home in a black
Impala, park the car, and exit it. When police followed Brown’s path from the
parked Impala to T.F.’s home, officers found two guns, including a .40 caliber
Smith and Wesson.
The jury received forensic evidence of several items. First, forensic analysis
matched the bullet that killed D.H. with a bullet casing found outside T.F.’s
home; both were fired by the Smith and Wesson gun found near T.F.’s home.
Second, Brown’s thumbprint was found on the extended clip of the Smith and
Wesson gun. Third, forensic testing of swabs taken from blood at the car wash
matched D.H.’s blood, which was admitted as evidence.
Id. at *1–2.
Of this evidence, the proffered Spreigl evidence included T.F.’s testimony that she had
seen Mr. Brown drive D.H.’s black Impala and discharge a firearm outside her home about
two hours after D.H.’s body was found, and forensic evidence showing that bullet casings
found outside T.F.’s home matched the murder weapon and were fired from the same gun
that contained Mr. Brown’s thumbprint. Id. at *4. The district court held this evidence was
admissible under Spreigl, finding it relevant to issues of identity and opportunity, as it “tended
to prove that Brown possessed the murder weapon shortly after the murder and fired the
murder weapon.” Id. (internal quotations omitted). To reduce the risk of prejudice, the district
court limited the testimony to a single shot being fired, for the sole purpose of identifying Mr.
Brown, and precluded testimony that the shot was fired at T.F.’s home, and cautioned counsel
not to refer to a “drive-by shooting.” Id.
5
The jury found Mr. Brown guilty and the court sentenced him to a 386-month
sentence. Id. at *2.
On his second appeal to the Minnesota Court of Appeals, Mr. Brown argued that
Brown I precluded the use of Spreigl evidence on retrial, therefore, the law-of-the-case
doctrine barred the district court from admitting it. Id. at *2–3. In addition, he challenged the
relevance of the Spreigl evidence and asserted that its probative value was outweighed by the
danger of unfair prejudice. Id. Mr. Brown’s counsel submitted the Spreigl argument on
appeal, while Mr. Brown, in a pro se supplemental brief, challenged his conviction on the
following additional grounds: (1) the sufficiency of the evidence; (2) the exclusion of
alternative-perpetrator evidence; (3) the district court lacked jurisdiction because there was
no indictment or grand jury proceeding; (4) the denial of his motion to dismiss the case for an
allegedly illegal blood draw; (5) the admission of certain challenged evidence; and (6) the
trial judge’s failure to recuse on remand. (R&R at 4) (citing R.A. at 1–35).
The Minnesota Court of Appeals affirmed Mr. Brown’s conviction in Brown II,
finding the law-of-the-case doctrine did not preclude the admissibility of the Spreigl evidence
and that the admission of such evidence was not an abuse of discretion. Brown II, 2023 WL
3806696, at *2–5. It also rejected all six of Mr. Brown’s pro se claims. Id. at *5–8.
In Mr. Brown’s petition for further review (“PFR”) to the Minnesota Supreme Court,
filed by counsel, he raised his Spreigl claim. (R.A. at 116, 124–29.) His counsel also
summarily raised the question of whether “any of the arguments or issues Brown raised in his
pro se supplemental brief to the Court of Appeals, including any and all federal constitutional
6
claims, entitle him to relief?” (Id. at 116.) However, counsel did not elaborate on this issue
in Mr. Brown’s PFR. (See id. at 114–30.)
The Minnesota Supreme Court denied Mr. Brown’s PFR on September 19, 2023. (Id.
at 131.)
C. 2254 Motion and R&R
In February 2024, Mr. Brown timely filed the instant Petition in this Court pursuant to
28 U.S.C. § 2254. In the Petition, Mr. Brown challenges his state court conviction, asserting
seven grounds for relief: (1) the Spreigl evidence should have been excluded under the law-
of-the-case doctrine; (2) the evidence was insufficient to support his second-degree murder
conviction; (3) his right to present a complete defense was violated by the exclusion of
alternative-perpetrator evidence; (4) the trial court lacked jurisdiction because he was not
properly charged by way of an indictment; (5) the blood draw violated his Fourth Amendment
rights; (6) several evidentiary rulings were in error and prejudiced his case; and (7) the trial
judge should have recused herself. (Pet’r’s Mem. [Doc. No. 2] at 1–9; see also R&R at 4–5.)
In addition, Mr. Brown requests an evidentiary hearing in support of his Spreigl claim.
(Pet’r’s Mot. for Evid. Hr’g at 1–3.)
In the R&R, Magistrate Judge Elkins found that the sole federal claim Mr. Brown had
fairly presented to the state courts was his Fourth Amendment challenge to the blood draw.
(R&R at 10–12.) She concluded that Mr. Brown failed to show that the Minnesota Court of
Appeals’ ruling on this issue was contrary to or an unreasonable application of federal law
and recommended that this ground for relief be denied. (Id. at 12.) As to his other six grounds
7
for relief, Magistrate Judge Elkins found that Mr. Brown failed to present a federal basis for
them in either his appeal to the Minnesota Court of Appeals or in his PFR to the Minnesota
Supreme Court. (Id. at 13.) Accordingly, she found that Mr. Brown had procedurally
defaulted all of his remaining grounds for relief. (Id. at 13–17.) The magistrate judge
therefore recommended that relief be denied on these claims, that the habeas petition be
dismissed with prejudice, and that a Certificate of Appealability be denied. (Id. at 17.)
II. DISCUSSION
A. Standard of Review and Applicable Rules of Law
The district court reviews de novo those portions of the R&R to which a specific
objection is made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); accord D. Minn.
L.R. 72.2(b).
Here, while Mr. Brown objects to all of the magistrate judge's findings and
recommendations, (see Objs. at 3), he focuses on the admissibility of the Spreigl evidence,
asserting that its admission at trial violated his right to due process. (Id. at 3–4) (stating,
“[O]ut of all of my claims, there is one th[at] stands out overall[:] the lower court was allowed
to present evidence of a drive by shooting even after the higher court deemed that that
evidence was inadmissible.”). In addition, he objects to the magistrate judge’s finding that,
with the exception of his Fourth Amendment challenge to the blood draw, he failed to fairly
present his federal constitutional claims to the state courts. (Id. at 2.) In response to Mr.
Brown’s Objections, the Government requests that the Court adopt the magistrate judge’s
8
findings and recommendations, based on the analysis set forth in the R&R. (Gov’t Resp.
[Doc. No. 19] at 1.)
A writ of habeas corpus under § 2254 “shall not be granted” with respect to any claim
that has been adjudicated on the merits in state court unless the state court proceeding
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or
“resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). A state court adjudication is contrary
to clearly established Supreme Court precedent if “the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or . . . decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves “an
unreasonable determination of the facts in light of the evidence presented,” 28 U.S.C. §
2254(d)(2), only if the “state court’s presumptively correct factual findings do not enjoy
support in the record.” Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004). Because state
court factual findings are presumed to be correct, they “can be rebutted only by clear and
convincing evidence.” Lupien v. Clarke, 403 F.3d 615, 618 (8th Cir. 2005).
Before seeking a writ of habeas corpus, a state prisoner must exhaust all available state
court remedies. 28 U.S.C. § 2254(b)(1). In order to provide the state with the opportunity
to adjudicate and correct any alleged violations of a prisoner’s federal rights, a federal habeas
petitioner must “provide the state courts with a ‘fair opportunity’ to apply controlling legal
9
principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S.
4, 6 (1982) (citing Picard v. Connor, 404 U.S. 270 (1971)). Thus, a habeas petitioner “must
‘fairly present’ his claim in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature of the claim.”
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66
(1995) (per curiam)). In order to properly present such a claim, “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 court.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (citations and
internal quotation marks omitted).
If a habeas claim has not been fairly presented to the highest available state court as a
federal constitutional claim, it is an unexhausted claim, and cannot serve as a basis for federal
habeas relief. “When a state court remedy is available for a state prisoner’s unexhausted
claim, the federal habeas court must defer action until the claim is exhausted, either by
dismissing the federal petition without prejudice or by using the ‘stay and abeyance’
procedure described in Rhines v. Weber, [544 U.S. 269] (2005).” Armstrong v. Iowa, 418
F.3d 924, 926 (8th Cir. 2005), cert. denied, 546 U.S. 1179 (2006). However, if state
procedural rules preclude further attempts to meet the exhaustion requirements for that claim,
then the claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Under Minnesota law, a longstanding procedural bar known as the “Knaffla rule” prevents
state prisoners from seeking postconviction relief based on claims that could have been raised
10
on direct appeal, because the prisoner either knew or should have known of the claims at that
time. State v. Knaffla, 243 N.W.2d 737 (Minn. 1976). Claims are considered “known” if
they were available after trial and could have been raised on direct appeal. See Townsend v.
State, 723 N.W.2d 14, 18 (Minn. 2006). There are two exceptions to Knaffla’s procedural
bar for claims that could have been raised on direct appeal—the procedural bar may not apply
(1) to claims that were so novel their legal basis was not reasonably available at the time of
direct appeal; or (2) because “the petitioner did not deliberately and inexcusably fail to raise
the issue on direct appeal” and “fairness so requires” review. Leake v. State, 737 N.W.2d
531, 535 (Minn. 2007) (quotations omitted).
When claims are procedurally defaulted, “federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The exception for
a fundamental miscarriage of justice requires a habeas petitioner to “present new evidence
that affirmatively demonstrates that he is innocent of the crime for which he was convicted.”
Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011).
B. “Fairly Presented” Federal Claim: Fourth Amendment Challenge to Blood
Draw
Following his murder conviction on remand, Mr. Brown appealed the constitutionality
of his blood draw. Brown II, 2023 WL 3806696, at *7. The Minnesota Court of Appeals
found no error in the trial court’s denial of his motion to dismiss on this basis. Id. As the
11
magistrate judge correctly observed, Mr. Brown fairly presented this constitutional challenge
to the state courts. (R&R at 10–11.)
Relying on Winston v. Lee, 470 U.S. 753 (1985), Mr. Brown again contends that the
trial court should have dismissed his case because a blood draw, performed while he was in
custody, constituted an unreasonable search in violation of the Fourth Amendment. (Pet. at
5.) However, as the magistrate judge explained, Winston does not warrant dismissal here.
First, Mr. Brown was subject to a blood draw, not a compelled, involuntary surgery that
required anesthesia as in Winston—a surgical procedure that posed a far greater intrusion,
with far more potential risks, than a blood draw. (R&R at 11.) Second, the typical remedy
for evidence obtained in violation of the Fourth Amendment is suppression, not dismissal.
(Id. at 12) (citing United States v. Barraza-Maldanado, 732 F.3d 865, 867 (8th Cir. 2013)).
In fact, the trial court suppressed the evidence obtained from Mr. Brown’s blood draw from
his second murder trial. Brown II, 2023 WL 3806696, at *7. Finally, Winston did not reach
the question of whether dismissal of charges is the appropriate remedy for an unreasonable
search of a defendant’s body. Rather, Winston arose in the context of injunctive relief, with
the defendant seeking an injunction prior to the proposed surgery to remove a bullet that could
be used in evidence against him. 470 U.S. at 757–58.
In sum, Mr. Brown has not shown an unreasonable application of clearly established
Supreme Court precedent under § 2254(d)(1) with respect to his Fourth Amendment claim.
Furthermore, nothing about the blood draw evidence—which the trial court suppressed—
implicates “an unreasonable determination of the facts in light of the evidence presented in
12
the state court proceeding” under § 2254(d)(2). Accordingly, Mr. Brown’s Fourth
Amendment claim does not provide a basis for habeas relief.
C. Remaining Claims
As to the magistrate judge’s finding that Mr. Brown failed to fairly present the federal
nature of his remaining claims to the state court in Brown II, Mr. Brown asserts two broadly
applicable objections. First, he argues that he was not required to seek state post-conviction
relief, but rather, could petition for habeas relief in federal court after the conclusion of his
direct appeal. (Objs. at 2.) Because the R&R contains no finding to the contrary, this
objection is moot.
Second, Mr. Brown points to his PFR to the Minnesota Supreme Court, filed by his
former counsel, which broadly raised as the second of two issues, whether “any of the
arguments or issues Brown raised in his pro se supplemental brief to the Court of Appeals,
including any and all federal constitutional claims, entitle[d] him to relief[.]” (Id.; R.A. at
116.) The PFR did not otherwise address any federal constitutional claims. Accordingly, the
Court will consider whether the arguments that Mr. Brown presented to the Minnesota Court
of Appeals raised federal constitutional issues.
1. Spreigl Evidence
In his § 2254 Motion, Mr. Brown asserts a violation of his Sixth and Fourteenth
Amendment rights based on the admission of the limited Spreigl evidence at his second
murder trial. (Pet. at 3.) Mr. Brown’s PFR to the Minnesota Supreme Court did not advance
any constitutional arguments concerning the Spreigl evidence, (R.A. at 114–30), nor did the
13
appellate brief that Mr. Brown’s counsel submitted to the Minnesota Court of Appeals.3 (Id.
at 1–31.) It is true that in his counsel’s brief to the Minnesota Court of Appeals, Mr. Brown’s
counsel cited three federal cases involving Federal Rule of Evidence 404(b): Government of
Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976); Old Chief v. United States, 519 U.S.
172, 180 (1997); United States v. Foskey, 636 F.3d 517, 523 (D.C. Cir. 1980). (R.A. at 3–4,
21, 26.) However, counsel relied on these cases because the federal evidentiary rule
corresponded with Minnesota Federal Rule of Evidence 404(b), not because the cases raised
any constitutional issues. Rather, Mr. Brown’s Spreigl claim was based on state law.
Although Mr. Brown now invokes the Sixth and Fourteenth Amendments in his habeas
petition, (Pet. at 3), “asking for the same relief on different grounds does not retroactively
convert the state law claim presented in the petitioner’s brief to the [state appellate courts]
into a federal claim.” Turnage v. Fabian, 606 F.3d 933, 940 (8th Cir. 2010).
The fact that Mr. Brown did not fairly present a constitutional claim on this basis to
the Minnesota state courts “means that it is procedurally defaulted.” Id. at 940–41; see also
Coleman, 501 U.S. at 750. To the extent any constitutional aspect of Mr. Brown’s Spreigl
claim exists, it would have been “known” at the time of his direct appeal, Townsend, 723
N.W.2d at 18, would not have been novel, and fairness does not require review. Leake, 737
N.W.2d at 535. Mr. Brown has shown neither cause and prejudice for failing to raise such a
claim, nor that the failure to consider such a claim would result in a fundamental miscarriage
3 In his pro se supplemental brief to the Minnesota Court of Appeals, Mr. Brown did
not duplicate the Spreigl argument advanced by his counsel. (See R.A. at 36–55.)
14
of justice. Coleman, 501 U.S. at 750. Accordingly, under § 2254(d)(1), this claim is
procedurally defaulted.
Habeas relief under § 2254(d)(2), based on an unreasonable determination of the facts
in light of the evidence presented in state court, is likewise denied. At the second murder
trial, the trial court admitted Spreigl evidence on a limited basis.4 On appeal in Brown II, the
Minnesota Court of Appeals carefully considered Mr. Brown’s Spreigl arguments concerning
relevance and prejudice. 2023 WL 3806696, at *4–5. It found that the district court did not
abuse its discretion in admitting the limited Spreigl evidence to establish identity and
opportunity, and that the probative value of the evidence was not outweighed by the potential
for unfair prejudice. Id. Mr. Brown has not submitted clear and convincing evidence to rebut
the presumption that the state courts’ factual determinations were incorrect. Lupien, 403 F.3d
at 618.
For all of these reasons, Mr. Brown is not entitled to habeas relief based on his Spreigl
claim.
4 As to Mr. Brown’s law-of-the-case argument, the Minnesota Court of Appeals
explained in Brown II that in Brown I, it considered the improper joinder of charges, and
analyzed the prejudice of hypothetical Spreigl evidence of the drive-by shooting. 2023 WL
3806696, at *3 (emphasis added). However, at that time, it was not reviewing the trial court’s
decision in the second murder trial to admit limited Spreigl evidence. Id. In fact, in Brown I,
the Minnesota Court of Appeals contemplated the potential admission of Spreigl evidence on
remand, as it advised the prosecution to “make clear what specific other acts it seeks to
introduce and under what specific legal basis” and to meet the applicable standards of proof
and Spreigl balancing tests on remand. Id. (citing Brown I, 2020 WL 4932785, at *12, 15).
15
2. Sufficiency of the Evidence
Mr. Brown also contends that the evidence admitted at his retrial for second-degree
murder was insufficient to support his conviction, in violation of the Sixth and Fourteenth
Amendments, alleging that the state “failed to prove many elements of the crime nor presented
any eyewitness to the crime or motive as to why the crime was committed.” (Pet. at 3; Pet’r’s
Mem. at 2–3.) He asserts that the evidence against him was largely or entirely circumstantial.
(Pet’r’s Mem. at 3.)
To the extent there is a constitutional dimension to this claim, Mr. Brown did not fairly
present it to the state courts. Mr. Brown only invokes constitutional violations regarding the
sufficiency of the evidence in the instant habeas petition. (See R.A. at 4–42, 114–30. ) “It is
not the province of a federal habeas court to reexamine state-court determinations on state-
law questions,” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curium) (quotation omitted),
and, as the magistrate judge observed, “mere similarity between state law claims and federal
habeas claims is insufficient to satisfy the fair presentation requirement.” (R&R at 13–14)
(citing Turnage, 606 F.3d at 936).
Here, the Minnesota Court Appeals clearly examined Mr. Brown’s sufficiency-of-the-
evidence challenge under state law, Brown II, 2023 WL 3806696, at *7–8, which differs from
the federal due process standard. Under Minnesota law, a heightened scrutiny standard
applies to convictions based on circumstantial evidence, requiring that the circumstances
proved be “consistent with a hypothesis that the defendant is guilty and must be inconsistent
with any other rational hypothesis.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). The
16
federal due process standard simply requires that the evidence, whether direct or
circumstantial, “reasonably support a finding of guilt beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 318 (1979). It need not “rule out every hypothesis except that of
guilt beyond a reasonable doubt.” Id.
Mr. Brown could have also raised a constitutional challenge to the state appellate
courts, but he failed to do so (see R.A. at 40–42), and neither exception to Knaffla applies.
Leake, 737 N.W.2d at 535. Accordingly, the claim is procedurally defaulted. Coleman, 501
U.S. at 750. Mr. Brown has shown neither cause and prejudice for the default, nor that a
failure to consider such a claim would result in a fundamental miscarriage of justice. Id.
Therefore, he is not entitled to relief under § 2254(d)(1).
Nor is Mr. Brown entitled to relief under § 2254(d)(2) for an unreasonable
determination of the facts in light of the evidence presented in state court. The Minnesota
Court of Appeals found that the “circumstances proved” by the circumstantial evidence in
Mr. Brown’s retrial for second-degree murder were consistent with guilt and “d[id] not
support a rational hypothesis inconsistent with Brown’s guilt.” Brown II, 2023 WL 3806696,
at *5–6 (citing State v. Silvernail, 831 N.W.2d 594, 598–99 (Minn. 2013)). That finding,
under a heightened scrutiny standard, is supported by the record, and Mr. Brown has
submitted no clear and convincing evidence to rebut the presumption that the state courts’
factual determinations were correct. Lupien, 403 F.3d at 618.
Accordingly, for all of these reasons, Mr. Brown is not entitled to habeas relief based
on his sufficiency-of-the-evidence claim.
17
3. Alternative-Perpetrator Evidence
Under the Sixth and Fourteenth Amendments, Mr. Brown contends that the trial court
abused its discretion by excluding certain alternative-perpetrator evidence, thereby allegedly
denying him the right to a complete defense. (Pet. at 4; Pet’r’s Mem. at 3–4.) Specifically,
he maintains that “there has been evidence in the record that proves that the victim D.H. pulled
out a handgun and pointed it to the face of T.F.[’s] brother before [D.H.] was killed.” (Pet’r’s
Mem. at 3.)
The R&R recommends that this claim be denied under § 2254(d)(1) because Mr.
Brown “failed . . . to present any federal basis for this claim to the [state appellate courts]”
and “did not raise any specific federal constitutional rights or case law for the state courts’
consideration and therefore did not fairly present any federal issue to the Minnesota Court of
Appeals or the Minnesota Supreme Court.” (R&R at 14.) While the Court agrees with the
magistrate judge’s ultimate conclusion, the analysis requires more discussion. In Mr.
Brown’s pro se supplemental brief to the Minnesota Court of Appeals, he did refer to a
specific constitutional right, albeit broadly. (R.A. at 42.) He argued that by excluding his
alternative-perpetrator evidence, the trial court denied him the “right to present a complete
defense and because of this, defendant [B]rown was denied [his] due process and the right to
a fair trial.” (Id.)
That said, merely invoking “a constitutional guarantee as broad as due process,” is
insufficient to submit the substance of a constitutional claim to the state courts. Gray v.
Netherland, 518 U.S. 152, 163 (1996). Mr. Brown’s appeal of this issue was based on the
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trial court’s evidentiary rulings. Typically, in the habeas context, “questions regarding the
admissibility of evidence are matters of state law.” Garcia v. Mathes, 474 F.3d 1014, 1017
(8th Cir. 2007). In order to raise a federal issue based on evidentiary errors, the petitioner
must show that “the alleged improprieties were so egregious that they fatally infected the
proceedings and rendered his entire trial fundamentally unfair.” Rousan v. Roper, 436 F.3d
951, 958–59 (8th Cir. 2006). Although Mr. Brown broadly referred to due process before
the Minnesota Court of Appeals, the substance of his state-court argument was, as it is here,
based on state-law evidentiary rulings, as he argued, “[T]here has been evidence in the record
that proves that the victim D.H. pulled out a handgun and pointed it to the face of T.F.[’s]
brother before [D.H.] was killed.” (Compare R.A. at 42, with Pet’r’s Mem. at 3.)
Magistrate Judge Elkins acknowledged that in Mr. Brown’s pro se alternative-
perpetrator argument to the Minnesota Court of Appeals he cited State v. Post, 512 N.W.2d
99 (Minn. 1994)—a state court decision that noted the harmless error standard under U.S.
Supreme Court case law. (R&R at 14 n.5) (citing R.A. at 43). In Post, the Minnesota
Supreme Court addressed the exclusion of evidence regarding an initial aggressor under
controlling Minnesota precedent and the Minnesota Rules of Evidence. 512 N.W.2d at 102
(citing State v. Salazar, 289 N.W.2d 753 (Minn. 1980)). Invoking the harmless error standard
from U.S. Supreme Court authority, the Minnesota Supreme Court in Post stated that “the
reviewing court must be satisfied beyond a reasonable doubt that if the evidence had been
admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a
reasonable jury) would have reached the same verdict.” Id. Mr. Brown quoted this same
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passage from Post in his pro se supplemental brief to the Minnesota Court of Appeals. (R.A.
at 43.) This language would not have alerted the state courts to any constitutional errors
resulting from the exclusion of certain alternative-perpetrator evidence. Indeed, the
Minnesota Court of Appeals addressed his alternative-perpetrator challenge only under state
law. Brown II, 2023 WL 3806696, at *6. Therefore, the Court agrees with the magistrate
judge’s ultimate finding that Mr. Brown did not fairly present the federal substance of his
alternative-perpetrator claim to the Minnesota state courts and it is procedurally defaulted
under state law, as he fails to meet any exceptions to Knaffla. Leake, 737 N.W.2d at 535.
Federal habeas review is barred because Mr. Brown has shown neither cause and prejudice
for the default, nor that a failure to consider such a claim would result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750. Accordingly, he is not entitled to relief
under § 2254(d)(1).
However, even if Mr. Brown did fairly present the federal nature of this claim to the
Court of Appeals by referring to “due process” (R.A. at 42–43), this claim still fails because
the state courts’ exclusion of alternative-perpetrator evidence was not an objectively
unreasonable application of clearly established federal law. 28 U.S.C. § 2254(a). Nor was
Mr. Brown’s conviction based on an unreasonable determination of the facts in light of the
evidence presented under § 2254(d)(2). The Minnesota Court of Appeals noted that at trial,
Mr. Brown did not seek to actually offer evidence that the person who killed D.H. was the
same person at whom D.H. had earlier pointed a gun. Brown II, 2023 WL 3806696, at *6.
Denying Mr. Brown’s motion for lack of foundation, the trial court found that Brown “was
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not actually offering . . . alternative perpetrator evidence. Instead, this is more consistent with
a simple not guilty plea.” Id. Mr. Brown was still allowed to testify that the victim, D.H.,
“pointed a gun at someone else and that [Mr. Brown] fled after an unknown third party
murdered D.H.” Id.
On direct appeal, the Minnesota Court of Appeals found no error because the proffered
evidence did not tie the alternative perpetrator to D.H.’s murder. Id. Further, the court found
that even if the exclusion of Mr. Brown’s proffered evidence was in error, “any error was
harmless beyond a reasonable doubt because Brown presented the proffered evidence through
his own testimony.” Id. (citing State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012) (“An error
is harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to the
error.”)). The Court finds that these state court determinations did not involve an objectively
unreasonable application of clearly established federal law, nor was there an unreasonable
determination of the facts in light of the evidence presented. Because the R&R did not
contain this additional analysis, but ultimately reached the same conclusion, the Court adopts
the portion of the R&R addressing Mr. Brown’s alternative-perpetrator claim (R&R at 14),
as modified herein.
For all of these reasons, this ground for habeas relief fails.
4. Indictment
Mr. Brown also alleges that his Fifth and Fourteenth Amendment rights were violated
“when the state tried and convicted me without an indictment being issued or a grand jury
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being summoned.” (Pet. at 4.) He contends that his conviction is invalid because the court
lacked jurisdiction on this basis. (Id.; Pet’r’s Mem. at 4–5.)
Mr. Brown is not entitled to habeas relief under § 2254(d)(1) because he failed to raise
this in his state appeal as constitutional error. (See R.A. at 39, 43–44, 114–30.) Rather, in his
pro se brief to the Minnesota Court of Appeals, he relied exclusively on Minnesota statutes
and Minnesota Rule of Criminal Procedure 18.06. (Id. at 43–44.) He invoked no specific
federal right, constitutional provision, or Minnesota case law discussing a federal basis for
this claim. (Id.) Consistent with Mr. Brown’s pro se arguments on appeal, the Minnesota
Court of Appeals addressed his jurisdictional argument under state law. Brown II, 2023 WL
3806696, at *6.
Moreover, as the magistrate judge observed, there is no federal constitutional
requirement that an indictment be issued in state criminal proceedings or that states must
conduct grand jury proceedings. (R&R at 14–15 n.6) (citing Alexander v. Louisiana, 405
U.S. 625, 633 (1973); Cooksey v. Delo, 94 F.3d 1214, 1217 (8th Cir. 1996)). Even if there
were, Mr. Brown could have raised the federal nature of this claim on direct appeal, but he
failed to do so, and he fails to meet any exceptions to Knaffla under state law. Leake, 737
N.W.2d at 535. Accordingly, this claim is procedurally defaulted. Coleman, 501 U.S. at 750.
Mr. Brown has shown neither cause and prejudice for the default, nor that a failure to consider
such a claim would result in a fundamental miscarriage of justice. Id. Accordingly, he is not
entitled to relief under § 2254(d)(1).
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Nor is Mr. Brown entitled to relief under § 2254(d)(2) based on an unreasonable
determination of the facts in light of the evidence presented in state court, as this issue is
procedural and does not implicate a determination of the facts.
For all of these reasons, this ground for habeas relief fails.
5. Inadmissible Evidence
Mr. Brown also alleges a violation of his Eighth and Fourteenth Amendment rights
based on the admission of evidence “that was irrelevant, confusing, a waste of time and caused
unfair prejudice.” (Pet. at 5.) Specifically, the evidence he identifies includes a video from
the car wash, a picture of a Glock handgun, a bloody shirt, 911 calls, a photograph of blood
on the street, and D.H.’s watch. (Id.)
Again, Mr. Brown is not entitled to habeas relief under § 2254(d)(1) because he fails
to meet the fair presentation requirement for this claim. (See R.A. at 39, 45–46, 114–30.) He
did not submit this claim to the Minnesota Supreme Court. (See id. at 116.) As for his
inadmissible-evidence argument to the Minnesota Court of Appeals, in his pro se brief, he
based his argument on Minnesota Rules of Evidence 401, 402, and 403. (Id. at 45–46.) As
noted earlier, in the habeas context, questions concerning the admissibility of evidence are
generally state law matters. Garcia, 474 F.3d at 1017. Mr. Brown does not meet the standard
necessary for habeas relief on this issue because he has not shown that the alleged evidentiary
improprieties “were so egregious that they fatally infected the proceedings and rendered his
entire trial fundamentally unfair.” Rousan, 436 F.3d at 958–59.
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Because Mr. Brown failed to fairly present any constitutional aspects of this claim to
the state courts, and he fails to meet any exceptions to Knaffla under state law, Leake, 737
N.W.2d at 535, this claim is procedurally defaulted. Coleman, 501 U.S. at 750. Mr. Brown
has shown neither cause and prejudice for the default, nor that a failure to consider such a
claim would result in a fundamental miscarriage of justice. Id. Accordingly, he is not entitled
to relief under § 2254(d)(1).
Nor is Mr. Brown entitled to relief under § 2254(d)(2) based on an unreasonable
determination of the facts in light of the evidence presented in state court. The Minnesota
Court of Appeals thoroughly addressed Mr. Brown’s evidentiary arguments, finding no error
in the admission of the evidence. Brown II, 2023 WL 3806696, at *7–8. It noted that the
handgun, bloody shirt, photographs, and D.H.’s watch tended to prove that Mr. Brown was
connected to the murder. Id. at *7. Further, it found that the 911 calls tended to corroborate
T.F.’s testimony about the events on the day of D.H.’s murder. Id. The appellate court also
found that even if this evidence had been admitted in error, Mr. Brown failed to show a
reasonable probability that any of the challenged evidence, which was cumulative, would
have significantly affected the verdict. Id. Finally, as to the car wash evidence, the appellate
court observed that Mr. Brown failed to object to its admission at trial, and failed to meet the
plain error standard on appeal. Id. at *8. In sum, the state courts’ determination of the facts
was not unreasonable and does not permit habeas review under § 2254(d)(2).
For all of these reasons, this claim for habeas relief fails.
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6. Recusal
In his final claim, Mr. Brown contends that the trial judge’s refusal to recuse following
remand violated his Sixth and Fourteenth Amendment rights. (Pet. at 5.)
Again, the magistrate judge correctly determined that Mr. Brown had procedurally
defaulted his recusal claim under § 2254(d)(1) for failure to raise any constitutional aspects
of this claim in his state court appeal. (See R.A. at 39, 47, 114–30.) Specifically, he failed
to raise this claim with the Minnesota Supreme Court (id. at 116), and consistent with Mr.
Brown’s pro se appeal to the Minnesota Court of Appeals that relied only on state law, the
Minnesota Court of Appeals applied only state law to his recusal claim. Brown II, 2023 WL
3806696, at *6.
Because Mr. Brown could have raised this claim on direct appeal and he fails to meet
any exceptions to Knaffla under state law, Leake, 737 N.W.2d at 535, his recusal claim is
procedurally defaulted. Coleman, 501 U.S. at 750. Mr. Brown has shown neither cause and
prejudice for the default, nor that a failure to consider such a claim would result in a
fundamental miscarriage of justice. Id. Accordingly, he is not entitled to relief under §
2254(d)(1). Nor is Mr. Brown entitled to relief under § 2254(d)(2) based on an unreasonable
determination of the facts in light of the evidence presented in state court. As the Court of
Appeals noted, Mr. Brown did not seek to remove the trial judge before his second trial for
second-degree murder, nor did he provide any legal authority to support a claim of plain error.
Brown II, 2023 WL 3806696, at *8.
For all of these reasons, this claim for habeas relief fails.
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D. Motion for an Evidentiary Hearing
Although Mr. Brown’s Motion for an Evidentiary hearing appears to be limited to his
Spreigl claim (Pet’r’s Mot. for Evid. Hr’g at 1–5), the Court finds that all of the issues raised
in his Petition can be resolved on the basis of the record and the parties’ legal arguments such
that no evidentiary hearing is necessary. See Wallace v. Lockhart, 701 F.2d 719, 729–30 (8th
Cir. 1983). Accordingly, the Court denies Mr. Brown’s Motion for an Evidentiary Hearing.
E. Certificate of Appealability
A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition
unless he is granted a Certificate of Appealability. See 28 U.S.C. § 2253(c)(1); Fed. R.
App. P. 22(b)(1). A Certificate of Appealability cannot be granted unless the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Such a “showing” requires that he demonstrate “that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Here, Mr. Brown has not made such a showing,
and thus is not entitled to a Certificate of Appealability.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Mr. Brown’s Petition for a Writ of Habeas Corpus by a Person in State Custody
Pursuant to 28 U.S.C. § 2254 [Doc. No. 1] is DENIED.
2. Mr. Brown’s Motion for an Evidentiary Hearing [Doc. No. 20] is DENIED.
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3. The Court ADOPTS the Magistrate Judge’s Report and Recommendation
[Doc. No. 17], as modified herein.
4. A Certificate of Appealability is NOT GRANTED.
5. This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 5, 2025 s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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