Petition for Writ of Certiorari — Andrew James Gibbons, Petitioner v. Nate Knutson, Warden

Supreme Court briefNov 15, 2019

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Supreme Court, U.S.

FILED

739

Gibbons

NOV 1 5 2019

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

ANDREW GIBBONS - PETITIONER

vs.

WARDEN, NATE KNUTSON - RESPONDENT

(

ON PETITION FOR A WRIT OF CERTIORARI TO

THE EIGHTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

ANDREW GIBBONS

MCF-MOOSE LAKE

1000 Lake Shore Dr.

Moose Lake, MN 55767

ORIGINA

Gibbons

QUESTIONS PRESENTED

1. Is petitioner (Gibbons) procedurally defaulted on his claim of ineffective

assistance of counsel for failure to investigate a mental illness defense when

counsel was notified by client that serious mental illness symptoms were being

experienced at the time of the offense? Did the last state court, the Minnesota

court of appeals, to render an opinion:

a) Plainly state that the court was relying on a state procedural rule, the Knafflabar, to foreclose federal habeas review, (which would procedurally default

petitioner) or,

b) “Actually rely” on a state procedural rule to bar federal review?

i. If so, which state procedural rule did the opinion rely on to deny

relief of which claims? - Knaffla, Spears, or Opsahll

2. Did counsel act reasonably in not investigating a mental illness defense when

counsel was notified by client that mental health information, in the form of

Gibbons’ reliance on anti-psychotic medication, existed from the time of the

offense for serious mental illnesses? - in a guilty plea context.

3. Was Gibbons prejudiced by counsel’s failure to investigate a mental illness

defense when counsel convinced Gibbons to plead guilty?

Gibbons

LIST OF PARTIES

Mr. Matthew Frank

ATTORNEY GENERAL’S OFFICE

Appeals Division

1800 Bremer Tower

445 Minnesota Street

Saint Paul, MN 55101-2134

Ms. Heather Pipenhagen

DAKOTA COUNTY ATTORNEY’S OFFICE

1560 W. Highway 55

Hastings, MN 55033-0000

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TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

INDEX TO APPENDICES

TABLE OF AUTHORITIES CITED

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

a) NOT PROCEDURALLY DEFAULTED

b) INNEFECTIVE PERFORMANCE AND PREJUDICE

REASONS FOR GRANTING THE WRIT

MINNESOTA COURT OF APPEALS “PLAIN STATEMENT”

DID NOT ACTUALLY RELY ON STATE PROCEDURAL RULE

FAILURE TO INVESTIGATE A MENTAL ILLNESS DEFENSE

DEFICIENCY PRONG OF STRICKLAND.

PLEA IS INVOLUNTARY AND UNINTELLIGENT

PREJUDICE PRONG OF STRICKLAND

INSANITY DEFENSE / REASONABLE PROBABILITY

CONCLUSION

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INDEX TO APPENDICES

Judgment of the United States court of appeals for the eighth circuit APPENDIX A

Order denying petitioner’s rule 60 motions

APPENDIX B

Respondent’s response to petitioner’s rule 60(b) (6) motions p. 4

APPENDIX C

Order adopting report and recommendation

APPENDIX D

Report and recommendation of the magistrate p. 14 (all)

APPENDIX E

Order from the Minnesota Supreme Court

APPENDIX F

Opinion of the Minnesota court of appeals

APPENDIX G

The table of contents, dated 12-2-16, and the evidentiary hearing

questions for defense counsel, dated 12-1-16, to the

APPENDIX H

second post-conviction petition

The appeal memorandum by petitioner to the Minnesota court of

appeals, p. 18, for the second post-conviction

APPENDIX I

•4

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TABLE OF AUTHORITIES CITED

USSC

Caldwell v Mississippi, 472 U.S. 320 (1985)

7, 11, 13,38

Coleman v Thompson, 501 U.S. 722 (1991).

5-7, 12, 16-17, 19,21,24, 39

Harris v Reed, 489 U.S. 255 (1989).............

5-7, 10-12, 14, 17,21,24,3839

Lee v United States, 137 S. Ct 1958 (2017)

9,33,39

Michigan vLong, 463 U.S. 1032 (1983)....

5,7, 11-12,38

Strickland v Washington, 466 US 668........

8, 16, 26, 28,31-32,35, 39

APPELLATE CIRCUITS

Bouchillon v Collins, 907 F.2d 589 (5th Cir.) (1990).....

Calderon v USDC (Bean), 96 F.3d 1126 (9lfi Cir).........

FordvParatt, 638 F.2d 1115 at 1118 (8th Cir) (1981)..

Hawkman v Paratt, 661 F.2d 1161 (8th Cir.) (1981).....

Johnson v Mabry, 752 F.2d 313 (1984) (8th Cir)...........

Koerner v Grigas, 328 F.3d 1039 (9th Cir.) (2003)........

Morrow v Paratt, 574 F.2d 411 (8th Cir.) (1978)...........

U.S. v Hernandez, 450 F. Supp. 2d 950 (8th Cir) (2006)

Valerio v Crawford, 306 F.3d 742 (9th Cir) (2002).......

6, 8, 27-28, 39

7, 18-21,39

8, 28-29, 39

8, 28-29, 34-35, 39

8, 15-18,39

6, 8, 29-32, 39

6, 8, 27-29, 39

8, 17, 19-20, 39

U.S. CONSTITUTION

6th Amendment Right to Effective Counsel...................

8, 15, 17

MINNESOTA COURTS

Dukes v State, 621 N.W.2d at 255.............

State v Wall, 343 N.W.2d 22 (Minn. 1984)

White v State, 711 N.W.2d at 110.............

22, 27

TENNESEE COURTS

Nichols v Bell, 440 F.Supp 2d 730 (Tenn) (2006)

MINNESOTA COURT PROCEDURAL RULES

Knaffla-bar................................................................

Opsahl-bar.................................................................

Spears-bar.................................................................

Brown-bar.................................................................

4-5, 10-12, 14-24, 38

5, 16

5, 14-24

23-24, 38

MINNESOTA STATUTE

611.026...............................

245.462 subd. 20 (c)(4)(i)...

37-38

MINNESOTA RULE

20.02...........................

6, 29,33,35,37-38

Gibbons

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from state courts:

The judgment of the United States court of appeals for the eighth circuit appears at Appendix A

to the petition and is unpublished.

The order denying petitioner’s rule 60 motions appears at Appendix B to the petition and is

unpublished.

The respondent’s response to petitioner’s rule 60(b) (6) motions, p. 4, appears at Appendix C to

the petition and is unpublished.

The order adopting report and recommendation appears at Appendix D to the petition and is

unpublished.

The report and recommendation of the magistrate appears at Appendix E to the petition and is

unpublished.

The order from the Minnesota Supreme Court appears at Appendix F to the petition and is

unpublished.

The opinion of the Minnesota court of appeals appears at Appendix G to the petition and is

unpublished.

The table of contents, dated 12-2-16, and the evidentiary hearing questions for defense counsel,

dated 12-1-16, to the second post-conviction petition appears at Appendix H to the petition.

Gibbons

The appeal memorandum to the Minnesota court of appeals, p. 18, appears at Appendix I to the

petition.

JURISDICTION

For cases from state courts:

The date on which the United States Court of Appeals for the Eighth Circuit decided my

case was:

8-22-19

No petition for rehearing was timely filed in my case.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

USCS Constitutional Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crimes shall have been committed, which

district shall have been previously ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and the have the Assistance of Counsel for his defense.

Minnesota Statute § 611.026

Mental Illness Defense

Criminal Responsibility of Persons with a Mental Illness or Cognitive Impairment

No person having a mental illness or cognitive impairment so as to be incapable of

understanding the proceedings or making a defense shall be tried, sentenced, or punished for any

Gibbons

crime; but the person shall not be excused from criminal liability except upon proof that at the

time of the committing the alleged criminal act the person was laboring under such a defect of

reason, from one of these causes, as not to know the nature of the act, or that it was wrong.

Minnesota Rule of Criminal Procedure 20.02

Defense of Mental Illness of Cognitive Impairment—Mental Examination

Subd. 1. Authority of Order Examination, —The trial court may order the defendant’s mental

examination if:

(a) The defense notifies the prosecutor of its intent to assert a mental illness or cognitive

impairment defense pursuant to Rule 9.02, subd. 1(5);

Subd. 2. Defendant’s Examination. -If the court order a mental examination of the defendant, it

must appoint at least one examiner as defined in Minn. Stat. ch. 253B, or successor statute, to

examine the defendant and report to the court on the defendant’s mental condition.

Minnesota Statute § 245.462

Definition

Subd. 20. Mental Illness.

(a) “Mental illness” means an organic disorder of the brain or a clinically significant disorder

of thought, mood, perception, orientation, memory, or behavior that is detailed in a

diagnostic codes list published by the commissioner, and that seriously limits a person’s

capacity to function in primary aspects of daily living such as personal relationships,

living arrangements, work, and recreation.

Gibbons

serious and persistent mental illness” means an adult who has a mental illness and meets

at least one of the following criteria:

(1) the adult has undergone two or more episodes of inpatient care for a mental illness within

the preceding 24 months;

(2) the adult has experienced a continuous psychiatric hospitalization or residential treatment

exceeding six months’ duration within the preceding 12 months;

(4) the adult;

(i) has a diagnosis of schizophrenia, bipolar disorder, major depression, schizoaffective

disorder, or borderline personality disorder;

(ii) indicates significant impairment in functioning; and

(iii) has a written opinion from a mental health professional, in the last three years, stating

that the adult is reasonably likely to have future episodes requiring inpatient or residential

treatment, of a frequency describes in clause (1) or (2), unless ongoing case management

or community support services are provided;

Knaffla-bar

State v Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding that, once a

petitioner has directly appealed a conviction, neither matters raised in that appeal nor matters

known but not raised will be considered upon subsequent petition for postconviction relief)

Spears-bar

Spears v State, 725 N.W.2d 696, 700 (Minn. 2006) (“Similarly [to the Knaffla court], a

postconviction court will generally not consider claims that were raised or were known and could

have been raised in an earlier petition for postconviction relief.”)

Gibbons

Opsahl-bar

Opsahl v State, 677 N.W.2d at 421 (Minn. 2004) “Trial strategy is not reviewable on a

claim of ineffective assistance.”

Brown v State, 146 N.W.2d 640, 642 (Minn 2008) (“Knaffla similarly bars postconviction

reciew of claims that could have been raised in a previous postconviction petition.”)

STATEMENT OF THE CASE

NOT PROCEDURALLY DEFAULTED

Petitioner (Gibbons) is not procedurally defaulted in this certiorari / § 2254 action as the

last state court to render a judgment, the Minnesota court of appeals, did not make a plain

statement that the state court was relying on a procedural rule to bar relief. The statement was

not “plain,” according to Harris, Coleman, and Long, as the statement also addressed whether

the district court had “abused its discretion” when denying on Knaffla-grounds.

Even if this Honorable Court determines that the statement to bar relief is a “plain

statement,” the Minnesota appellate court opinion did not “actually rely” on said statement to bar

relief. Gibbons brought forth three grounds for relief for ineffective assistance of counsel. The

Minnesota appellate court opinion cited the Knaffla court and a “similar” Spears court.

According to the opinion’s citation, Knaffla applies to post-conviction petitioners who have done

a direct appeal, while; the Spears citation applies to post-conviction petitioners who have done a

previous post-conviction petition. Clearly, both of these state procedural rules can not apply to

Gibbons exact particular precise procedural position - either there was a direct appeal with a

following post-conviction petition, or there were two post-conviction petitions. Since the

Minnesota appellate court did not specify which claims were barred for which reasons,

Gibbons

specifically ground three in the opinion, (App. G) op. p. 6, lines 3-14 (which is ground one in the

§ 2254 petition), the last state court to render an opinion did not clearly, explicitly, and expressly

“actually rely” on a state procedural rule to bar relief according to Harris, and Coleman.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL’S PERFORMANCE AND

PREJUDICE IN A GUILTY PLEA CONTEXT

Trial counsel was notified repeatedly via letter from petitioner (Gibbons) that Gibbons

was receiving psychiatric services at the time of the offense for schizoaffective, and that Gibbons

was un-medicated at the time of the offense, or at least not taking medication as prescribed, for

several months before the crime.

Counsel refused to investigate this avenue until after Gibbons pled guilty. After Gibbons

pled guilty, trial counsel did retrieve the psychiatric evidence that Gibbons was asking to be

procured, but when the information was mailed to trial counsel, counsel said that he did not

believe anything in those records would be beneficial, presumably without reading the diagnosis

from the time of the offense. Failure to investigate is both deficient performance of counsel,

under Hernandez, Bouchillon, and Morrow, and prejudices a defendant in making a voluntary

and intelligent guilty plea, under Morrow.

The diagnosis that trial counsel did not read was that Gibbons’ symptoms of

schizoaffective were too severe to be treated in an outpatient treatment setting - that he should

have been hospitalized for mental health reasons. Gibbons asserts that this is prima facie

grounds for a rule 20.02 investigation; to see if doctors would find whether Gibbons did, or did

not, know at the time of the offense the nature of his acts, or that they were wrong.

Gibbons

REASONS FOR GRANTING THE WRIT

U.S.C.S Supreme Court Rule 10

RulelO. Considerations Governing Review on Certiorari:

By the eighth circuit court of appeals dismissing the 28 USC § 2254 petition without

reaching the merits of the 28 USC § 2254 appeal memorandum, the circuit court has thereby

entered a decision in accordance with the district court of Minnesota’s order finding procedural

default in conflict with procedural default doctrine enunciated by the U.S. Supreme Court and

lower circuits.

question in a way that conflicts with relevant decisions by this Court; whether there was a

“plain statement” required by procedural default doctrine.

1. Caldwell v Mississippi, 472 U.S. 320, 327 (1985)

2. Harris v Reed, 489 U.S. 255, 266 n. 13 (1989)

3. Michigan v Long, 463 U.S. 1032, 1040-41 (1983)

question in a way that conflicts with relevant decisions by this Court; whether the state

court “actually relied” on the “plain statement.”

1. Coleman v Thompson, 501 U.S. 722 (1991)

2. Harris v Reed, 489 U.S. 255, (1989)

(a) A United States court of appeals (for the eighth circuit) has entered a decision in conflict

with the decision of another United States court of appeals on the same important matter

in regards to “actually relying” on a state procedural rule to bar relief.

1. Calderon v United States District Court (Bean), 96 F.3d 1126 (9th Cir) (1996)

Gibbons

2. Koerner v Grigas, 328 F.3d 1039 (9th Cir.) (2003)

3. Valerio v Crawford, 306 F.3d 742 (9th Cir.) (2002)

By the eighth circuit dismissing the 28 USC § 2254 petition without reaching the merits

of the 28 USC § 2254 appeal memorandum, the circuit court has passed on the issue of whether

petitioner is being held in violation of his 6th amendment right to effective counsel, in a guilty

plea context.

as procedurally defaulted and failing to reach the merits of the underlying § 2254 ground

for relief, has decided an important federal question in a way that conflicts with relevant

decisions by this Court; whether there was a violation of the 6th amendment right to

effective counsel - in a guilty plea context.

1. Strickland v Washington, 466 U.S. 668

(a) A United States court of appeals (for the eighth circuit), by way of dismissing the petition

as procedurally defaulted and failing to reach the merits of the underlying § 2254 ground

for relief, has decided an important federal question in a way that is in conflict with the

decision of another United States court of appeals on the same important matter; whether

there was a violation of the 6th amendment right to effective counsel - in a guilty plea

context.

1. Bouchillon v Collins, 907 F.2d 589 (5th Cir) (1990)

2. FordvParatt, 638 F.2d 1115 (8th Cir) (1981)

3. Johnson v Mabry, 752 F.2d 313 (1984) (8th Cir) (1985)

4. Morrow v Paratt, 574 F.2d 411 (8th Cir) (1978)

5. U.S. v Hernandez, 450 F. Supp. 2d 950 (8th Cir) (2006)

Gibbons

as procedurally defaulted and failing to reach the merits of the underlying § 2254 ground

for relief, has decided an important federal question in a way that conflicts with relevant

decisions by this Court; whether petitioner has met the “reasonable probability” of

insisting on trial rather than plead guilty.

1. Leev United States, 137 S. Ct. 1958 (2017)

DISCUSSION OF MINNESOTA COURT OF APPEALS “PLAIN STATEMENT”

The first issue addressed in the instant certiorari / § 2254 action is that of where an

underlying supposed “plain statement” that is composed of the first two sentences of the

Minnesota appellate court opinion (App. G) is allegedly not “plain.” This issue is of national

importance because, it would seem to petitioner (Gibbons), magistrate’s, district court’s, and

circuit court’s, (at least in the eighth circuit) are unaware that if a statement contains two topics,

it is not a statement that is clear of extraneous matter concerning a state procedural rule - i.e., it

is not “plain:”

Reviewing state courts at the federal level need to be notified by this Court what a “plain

statement” is, or is not, by discussing the Minnesota appellate court opinion’s purported plain

statement. Reviewing state courts at the federal level need to be made aware, it would seem to

Gibbons, when they have jurisdiction to review the merits of a § 2254 action.

In the lower federal courts’ over-abundance of caution to not violate a state’s right to

foreclose federal review for a petitioner not following a state procedural rule, the lower federal

courts are showing that they themselves do not know when they actually do have jurisdiction.

This is a mockery, and a farce, to judicial proceedings resulting in delayed merits review of a

Gibbons

§2254 action where it is clear that the petitioner is being held in violation of a constitutional

right. The federal courts should be jumping to find ways to exert their jurisdiction, and this

injustice should not be repeated to any petitioner, in any state. This Court needs to clarify what a

“plain statement” does, or does not, consist of, it appears to Gibbons.

Harris does give an example of what a pro forma one line plain statement to deny federal

review would be composed of. What Harris does not do is: describe how a statement is not

plain. Gibbons asserts that if a sentence explicitly states a state procedural rule, and combines

the statement with a comment about a lower court not abusing its discretion, the statement is not

plain.

Minnesota uses the Knaffla-bai to deny relief to appellants and petitioners on subsequent

petitions after an appeal. Knaffla states that a prisoner only gets one review where; any issue

already litigated on appeal, or any issue known to petitioner but not raised on appeal, is waived

on subsequent post-conviction petition.

In the respondent’s “response to petitioner’srRule 60(b)(6) motions” (App. C), p. 4, lines

7-11, the respondent quotes the first lines of the Minnesota appellate court opinion, and states

that Gibbons argued under Harris that the Minnesota court of appeals “did not clearly decide his

case on independent state grounds.” This is a reference by respondent to the Harris ’ “plain

statement” rule. Harris gives a prime example of what a “plain statement” looks like, Harris,

489 U.S. 255 (1989) at 265 n. 12.

“a state court that wishes to rely on a procedural rule in a one-line proforma order

easily can write that “relief is denied for reasons of procedural default.

5955

Gibbons asserts that the following citation is not a “plain statement,” from p. of 1 the

Minnesota appellate court opinion (App. G).

Gibbons

“Appellant, pro se, challenges the denial, without a hearing, of his second petition

for post-conviction relief. Because the district court did not abuse its discretion in

denying appellant’s petition on Knaffla grounds, we affirm.”

Plain: adj. 2: free from extraneous matter. Webster dictionary.

Plain: adj. 1: free from all additions. Webster thesaurus.

The second sentence of the opinion’s opening statement affirming the denial of post

conviction relief is not plainly speaking of the Knaffla-bai. It also addresses the district court not

abusing its discretion. Therefore, the last state court to render an opinion did not contain a

“’plain statement’” that [its] decision rests upon adequate and independent state grounds.”

(quoting Michigan v Long, 463 U.S. 1032, 1042 (1983)) Harris v Reed, 489 U.S. 255, 261

(1989).

Whether the disputed state-law ground is substantive or procedural does not matter under

the Long “plain statement” rule.

“the Long “plain statement” rule applies regardless of whether the disputed statelaw ground is substantive (as it was in Long) or procedural, as in Caldwell v

Mississippi, 472 U.S. 320, 327 (1985).” Id. at 261

Finally, on the notion of a “plain statement” Harris, at 261, states that the last state court

to render a judgment must “clearly and expressly,” Harris, at 263, state its judgment rests on a

state procedural bar.

Clear: adj. 4: easily heard, seen, or understood. Webster dictionary.

Clear: adj. 5: free from doubt. Webster dictionary.

Clear: adj. 2: not subject to misinterpretation or more than one interpretation. Webster thesaurus.

Express: 1: explicit, exact, precise. Webster dictionary.

Express: 1: of a particular or exact sort. Webster thesaurus.

Gibbons

Express: 2: so clearly expressed as to leave no doubt about meaning. Explicit. Webster

thesaurus.

Does the opinion state that it affirms because the district court did not abuse its

discretion, because petitioner is Knaffla-barred, or both?

The issue of whether the Minnesota appellate court opinion plainly stated that it

expressly, explicitly, and clearly is resting its judgment on an independent and adequate state law

ground is incumbent upon this Court to ascertain for itself.

Michigan v Long, 463 U.S. 1032, 1038 (1983) “It is, of course, “incumbent upon

this Court ... to ascertain for itself ... whether the asserted non-federal ground

independently and adequately supports the judgment.” Abie State Bank v Bryan,

282 U.S. 765,773 (1931).”

Gibbons respectfully implores this Honorable Court to grant certiorari to set a precedent

by discussing what a “plain statement” is not, by example of the Minnesota appellate court

opinion (App. G).

DID NOT ACTUALLY RELY ON STATE PROCEDURAL RULE

The second issue addressed in the instant certiorari petition is that; concerning the

allegation of the lower courts that petitioner (Gibbons) is procedurally defaulted: did the last

state court to render an opinion “actually rely” on a state procedural rule to foreclose federal

review? Gibbons asserts the Minnesota appellate court did not. This is an issue of national

importance because:

1) there are surprisingly few precedents regarding this issue of “actually relying” on a

state procedural rule, aside from Harris and Coleman actually stating that a state court must

“actually rely” on a state procedural rule, in the opinion, to bar federal review. It would seem to

Gibbons

Gibbons that only the 9th circuit has had the opportunity to address the issue of what does not

constitute “actually relying” on a state procedural rule to bar federal review. And

2) this Court, Gibbons asserts, should provide a clear example, by way of discussing the

Minnesota appellate court opinion, of how a state court needs to write their opinion if they are

trying to foreclose federal review. This Court should state that; merely citing a state court

procedural rule in the opening paragraph of the opinion, but not discussing how that state

procedural rule directly applies to a petitioner’s particular precise procedural position (when it

does not because there was no direct appeal), and in fact: citing a “similar” rule that precisely

would bar federal review, but again not discussing how that rule applies to a petitioner’s

particular precise procedural position, rather; denies entire post-conviction petition on the

formerly stated state procedural rule that does not apply to a petitioner’s particular precise

procedural position, is too general to bar federal review.

In short, citing two state procedural rules, but not stating which rule applies to which

grounds for relief, rather; dismissing entire petition on a state procedural rule that does not apply

to the particular precise procedural position petitioner is in, is insufficient to bar federal review.

This is of national importance so state courts are not allowed to usurp this Court’s

jurisdiction with sloppy, ambiguous, and unclear opinions. Every petitioner deserves to know

the state rules he has violated that cause him to be restrained of his liberty, in clear, express, and

explicit terms.

The Report and Recommendation (App. E), p. 14, says that the “operative question” is

“whether the state court relied on an independent and adequate procedural rule to

bar relief.”

The operative word, according to Gibbons, being relied.

Gibbons

Gibbons asserts: that even if this Court determines that the first two sentences of the

Minnesota appellate court opinion (App. G) do indeed constitute a “plain statement” under

Harris, the opinion did not “actually rely,” on said plain statement when applying the Knafflabar to the facts of Gibbons’ second post-conviction petition.

Harris v Reed, 489 U.S. 255, 261 (1989) “[T]he state court must have actually

relied on the procedural bar as an independent basis for its disposition of the

case.” Ibid." [Caldwell v Mississippi, 472 U.S. 320, 327 (1985)].

The Minnesota appellate court opinion did not “actually rely” id., on a state-procedural

rule when dismissing the second post-conviction petition on Knaffla grounds. The first sentence

of the opinion (App. G) states Gibbons’ particular precise procedural position - “second petition

for post conviction relief.” Then the opinion states that the Minnesota appellate court agrees that

the petition is denied on Knaffla grounds, and that the district court did not abuse its’ discretion.

On the second page State v Knaffla is cited, where it is plain to see that the “Kno^Ia-bar”

applies to petitioner’s who have done a previous direct appeal, and then a post-conviction

petition. Immediately thereafter, Spears v State is cited as “similar” to the Knaffla court in that;

successive post-conviction petitions are “generally not considered.” This is the exact particular

precise procedural position Gibbons is in, as opposed to a post-conviction petition position where

Knaffla would apply, i.e. after an appeal. So, is Gibbons procedurally barred under Knaffla or

Spears?

Nowhere in the opinion is it mentioned that Knaffla and Spears are interchangeable, or

that Gibbons is procedurally barred under Spears. The closest the opinion comes to this notion is

in the Spears citation the quote says that Spears is “similar [to the Knaffla court]” where similar

means: “marked by correspondence or resemblance” (Webster dictionary), yet these two rules

are distinguishable.

Gibbons

The second post-conviction petition alleged three grounds for ineffective assistance of

counsel in violation of the 6th amendment. Those grounds for relief were addressed in the

Minnesota appellate court opinion (App. G) on: p. 4 for ground one, that counsel implied guilt

without Gibbons’ acquiescence; p. 5 for ground two, that counsel did not seek a dispositional

departure; pp. 5-6 for ground one again; and p. 6 for ground three, the instant ground for this

certiorari / § 2254 action: counsel not investigating a mental health defense when notified by

Gibbons of his mental health problems at the time of the offense - in a guilty plea context.

Considering the notion that the opinion cited two procedural rules to bar relief, Knaffla

and Spears, and by not stating explicitly, expressly, or clearly which of these two court’s applied

to which three grounds, rather dismissed entire petition on Knaffla grounds, which does not

apply to Gibbons’ particular precise procedural position, as opposed to Spears grounds, which

does apply to Gibbons’ particular precise procedural position, Gibbons will now discuss 9th

circuit analogous cases where it was found that such situations; where it is not clear upon which

rule a state decision rests for which grounds, are insufficient to preclude federal review.

The first 9th circuit authority is Koerner v Grigas where, a petitioner’s 18 claims were

found to be either: litigated previously, and were not barred; or could have been raised

previously, and were procedurally barred. Analogous to both Knaffla and Spears in that; for

both Knaffla and Spears, previously raised issues, and issues not raised previously, are barred

under both rules, but different to the application of the current certiorari / § 2254 action in that,

according to the opinion (App. G), Knaffla is in regards to post-conviction petitions after a direct

appeal, and Spears is in regards to successive post-conviction petitions. To be clear: the

Minnesota appellate court opinion affirms the denial of relief on Knaffla grounds, then quotes

both Knaffla and Spears on opinion p. 3 (App. G), where it is plain from the opinion that only

Gibbons

Spears would apply to Gibbons particular precise procedural position - and nowhere is it stated

in the opinion that Knaffla and Spears are interchangeable, only “similar.”

Accordingly, since the Nevada Supreme Court in Koerner did not specifiy which claims

were barred for which reasons, like Gibbons’ second post-conviction opinion, the 9th circuit

found none of the 18 claims to be procedurally defaulted.

Koerner discusses Coleman v Thompson, 501 U.S. 722 (1991) in that; upon habeas a

federal court must ascertain for itself if a state court judgment actually rests upon independent

and adequate state grounds.

Koerner v Grigas, 328 F.3d 1039, 1051 “Instead [**29] in such cases, “federal

habeas courts must ascertain for themselves if the petitioner is in custody pursuant

to a state court judgment that rests on independent and adequate state grounds.”

Id. at 736.”

Coleman, in Koerner, gives guidance for when the applicable state law ground is

ambiguous or unclear; that the federal court must make their own inquiry - if there is no federal

law basis for the decision. In the Minnesota appellate court opinion (App. G), the state

procedural rule of Knaffla is mentioned twice. Strickland is applied to both ineffective

assistance of counsel claims ground one and two, but not the instant ineffective assistance of

counsel claim three (which happens to be ground one in the instant certiorari / § 2254 petition).

Also, when discussing the instant ineffectiveness claim another state case is cited: Opsahl v

State, 677 N.W.2d at 421 (Minn. 2004), but the opinion did not discuss Strickland. At best, the

opinion interwove state and federal law, but there is no doubt from the face of the opinion that

the Knaffla, Spears, and Opsahl courts are independent and adequate state law grounds.

Accordingly, Gibbons is asserting that there is no “plain statement” in the opinion, as already

addressed on pp. 9-12', and that under Harris, 489 U.S. at 261, the opinion did not “actually

rely” on the Knaffla-bar, as stated on op. p. 1 (App. G), when denying review of the

Gibbons

constitutional 6th amendment ground for ineffective assistance of counsel for failure to

investigate after counsel is notified of mental problems of the client, at the time of the offense in a guilty plea context.

Koerner v Grigas, 328 F.3d 1039, 1049 (9th Cir.) (2003) “All that Coleman

teaches in that no presumption applies where no federal law basis for the decision

is evident, and that federal courts must make their own inquiry.”

In Valerio, an en banc panel of the 9th circuit reviewed the district court’s rejection of

several habeas claims as procedurally defaulted. Because the Nevada Supreme Court did not

clearly and expressly rely on an independent and adequate state ground, because it did not

specify which claims were barredfor which reasons, the court found that none of the claims

were procedurally barred.

[*1049] “The Nevada Supreme Court determined that only some of these eighteen

claims had been litigated previously, but determined that dismissal was proper

because the other claims could have been raised previously and were procedurally

barred. Id. at 772. The en banc court held that, because it failed to specify which

claims were barredfor which reasons, the Nevada Supreme Court ‘did not clearly

and expressly rely on an independent and adequate state ground.’” Id. at 775.

(quoting Coleman, 501 U.S. at 735). Accordingly, none of the eighteen claims

could be held to be procedurally defaulted. Id.” (emphasis added)

Koerner evaluates Coleman in regards to a state appellate court opinion that is unlike

Harris' presumption: that the opinion relied on federal law; but is like Coleman, in that the state

law ground upon which the opinion rested was either ambiguous or unclear.

Gibbons asserts that: while the opinion (App. G) stated the Knaffla-bar on p. 1 and stated

that the district court did not abuse its’ discretion in denying on Knaffla grounds, the Minnesota

appellate court opinion did not “actually rely” on this state procedural rule because; when the

opinion also cites Spears, on p. 3, the state law ground upon which the instant certiorari / § 2254

ground is barred becomes ambiguous and unclear, especially considering that the Spears court

Gibbons

states “a post conviction court will generally not consider claims ...” (emphasis added), leaving

open exceptions to the procedural bar.

This makes the state procedural rule upon which the opinion relied ambiguous or unclear

because, as stated, the Spears court citation leaves room for exceptions (according to the

opinion), and only Gibbons’ ineffective ground two is found to not have met the exception of the

“need for fact-finding” (op. p. 5, line 20) while ground three, the instant certiorari / § 2254

ground, is reviewed upon the merits with no reference to either Knaffla or Spears in its

corresponding paragraph (App. G) (op. p. 6, lines 3-14).

Compounding this issue of ambiguity and a lack of clarity is the fact that directly after the

opinion states that Gibbons did not explain why his ineffective assistance of counsel claim was

not available previously - as opposed to claimfs') (emphasis added).

“He does not explain why his ineffective assistance of counsel claim was not

available at the time of his first postconviction petition ...” (App. G) (op. p. 3,

lines 20-22).

the opinion refers directly to ineffective ground one only when talking about why a claim

was not previously raised:

“but he reiterates his view that his counsel erred by saying or implying that

appellant was guilty without appellant’s consent.” (App. G) (op. p. 3, line 22, p.

4, line 1).

To be certain, the instant certiorari / § 2254 action is requesting review and relief on

ineffective counsel ground three from the face of the opinion (App. G), op. p. 6, lines 3-14,

which is ground one of the certiorari / § 2254 action.

Koerner relied upon Calderon v United States District Court (Bean), 96 F.3d 1126 (9th

Cir) (1996). In Bean the California court held that 39 claims were “procedurally barred in that

Gibbons

they were or could have been, but were not raised on appeal or were waived by failure to

preserve them at trial.” Id. at 1128

[*1051] “One of the grounds relied upon - that the issues actually were raised on

appeal - would not bar federal review. Id. at 1131. The other ground - [*1052]

that the issues were not raised on appeal and therefore were waived - likely would

bar federal review. Id. Finding that ‘‘the California Supreme Court’s order

provides no basis upon which to apply ” the latter ground, the panel determined

that if was too “ambiguous” to bar federal review. Id.” (emphasis added)

Like Bean, according to the Minnesota appellate court opinion citing both Knaffla and

Spears, this Court can see that one of the state grounds relied upon by the state would not bar

federal review because it does not apply to Gibbons’ particular precise procedural position —

Knaffla', while the other state law ground - the Spears court, certainly would bar federal review,

absent any exceptions to the Spears bar; but it is never stated that Gibbons’ claims are barred

under Spears, nor is a discussion evident as to how ground three does not meet a Spears

exception.

The second 9th circuit case is Valerio v Crawford, where a state court opinion did not

specify which cases pertain to claims 4-8, 10-12, and 16-18, for relief.

In Valerio, citing Coleman, the 9th circuit made clear that the state procedural rule “must

also be actually relied on in the particular case in question.” If the “last state court... did not

clearly and expressly rely on an independent and adequate state ground, a federal court may

address the petition.” (emphasis added)

Valerio v Crawford, 306 F.3d 742, 773-74 (9th Cir) (2002) [*773] “The rule must

also be actually relied on in the particular case in question. “In habeas, if the

decision of the last state court to which the petitioner presented his federal claims

... did not clearly and expressly rely on an independent and adequate state

ground, a federal court may address the petition.” Coleman v Thompson, 501

U.S. 722, 735, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). [*774] “[A] procedural

default based on an ambiguous order that does not clearly rest on independent and

adequate state grounds is not sufficient to preclude federal collateral review.”

Morales v Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996).”

Gibbons

A state court opinion that does not clearly and expressly rely on an independent and

adequate state ground does not bar federal review. The operative question this Court needs to

resolve is: did the Minnesota appellate court “actually rely” on Knaffla grounds to bar relief of

Gibbons’ second post-conviction petition absent a direct appeal? When the Minnesota appellate

court opinion itself cites Knaffla as only applying to petitioner’s who have done an appeal, and

cites Spears as regarding petitioners who have done successive post-conviction petitions

clearly, when looking at the particular precise procedural position of Gibbons - both Knaffla and

Spears could not apply. Like Valerio, one ground would bar federal review of Gibbons’ petition,

Spears', and the other would not as Gibbons did not do a direct appeal, Knaffla. The reviewing

state court did not specify which of Gibbons’ asserted three grounds for post-conviction relief,

on ineffective assistance of counsel grounds, were barred for which reasons, rather; denied entire

petition on grounds that do not apply to Gibbons petition: Knaffla. At best, the opinion (App. G)

stated that the Spears court was “similar” to Knaffla, yet these are still distinguishable courts of

procedural rule. This is a prime example of a state court opinion that is too ambiguous, as to

which state law ground was relied upon, to bar federal review.

[*774] “The facts of this case are indistinguishable from those in Calderon v

United States District Court (Bean), 96 F.3d 1126 (9th Cir. 1996). In Bean, two

groups of claims were presented to the California Supreme Court on state habeas

corpus. One group (the Waltreus group) had already been raised on appeal in

state court and could not be presented again in state court. See In re Waltreus, 62

Cal. 2d. 218, 42 Cal. Rptr. 397 P.2d 1001 (1965). The other group (the

Harris/Dixon group) had not been raised and had therefore been waived. See in

re Harris, 5 Cal. 4th 813, 825 n.3, 855 P.2d 391, 21 Cal. Rptr. 2d 373 (1993)

(discussing In re Dixon, 41 Cal. 2d 756, 264 P.2d 513 (1953)).

[*774] “In denying the petition, the California Supreme Court cited both Waltreus

and Harris/Dixon as bases for its decision and did not specify which claims fell

into which group. We held that the California Supreme Court was not sufficiently

clear to bar federal habeas corpus review of the claims: (emphasis added)

Gibbons

The order, which we agree with the district court is ambiguous, does not specify

[**85] which of Bean’s thirty-nine claims the court rejected under Waltreus, and

which it rejected under Harris/Dixon. “[A] procedural default based on an

ambiguous order that does not clearly rest on independent and adequate state

grounds is not sufficient to preclude federal collateral review.” Bean, 96 F.3d at

1131 (citations omitted).

[*774] In affirming the Nevada district Court’s dismissal of [prisoner’s] claims

..., the Nevada Supreme Court failed to specify which claims had previously been

presented to the state court and could not be relitigated, and which had never been

presented to state court and had been waived. ...

By [*775] failing to specify which claims were barred for which reason, the

Nevada Supreme Court ‘did not clearly and expressly rely on an independent and

adequate state ground.” (quoting Coleman, 501 U.S. at 735).” (emphasis added)

The Minnesota appellate court opinion, to its’ credit, did clearly and expressly state its’

independent and adequate state procedural rule to bar federal review on p. 2 of the opinion (App.

G), although it also talked about the lower court’s discretion.

“Appellant, pro se, challenges the denial, without a hearing, of his second petition

for postconviction relief. Because the district court did not abuse its discretion in

denying appellant’s petition on Knaffla grounds, we affirm.”

On p. 3 the opinion cites Spears v State. The Spears citation says: “generally will not

consider claims...” This raise’s the questions:

1) What claims would be considered an exception to the Knaffla / Spears bar? And

2) Did Gibbons raise his claims in a manner consistent with addressing claims in an

exception to the Knaffla / Spears state procedural rule? Where it would be incumbent

upon the state court to address why ground three did not meet an exception, to “actually

rely” on Knaffla / Spears.

On the table of contents for Gibbons’ second post-conviction, dated 12-2-16, p. 31 (App.

H), it is specifically pointed to; alleged by Gibbons, non-Tfna^a-barred questions. The page

dated 12-1-16 specifically address alleged non-Knaffla barred questions as well.

Gibbons

P. 18 of the Minnesota appeal brief to the Minnesota appellate court (App. I) clearly

addresses

. that these claims are not Knaffla-baned because they cannot be decided solely

based on the district court record.”

P. 5 of the Minnesota appellate court opinion (App. G) discusses the two cases Gibbons

used as examples of Knaffla-bar exceptions, namely White and Dukes. On lines 13-15 the

opinion compares Gibbons’ claims to the merits of White's claims that were not Knaffla-baned,

rather than discuss how Gibbons’ claims were Knajfla-baned as well, i.e., not meeting an

exception, therefore not explicitly relying on Knaffla to bar relief for any asserted by Gibbons

grounds.

Continuing on p. 5 of the opinion, lines 18-20, and p. 6, lines 1-2 (App. G), the opinion

states the Knaffla-bar exception: “need[ed] additional fact-finding,” namely, “testimony from

[the defendant] and his [trial] counsel.” Then the opinion explicitly says that the claim of

Gibbons asserting counsel implied guilt without Gibbons acquiescence is distinguishable from

Dukes. Gibbons raised three ineffective assistance of counsel claims. One of them, the

acquiescence argument (ground one), was explicitly denied due to not meeting an exception

under Knaffla, the other two grounds, specifically ground three, is not discussed as to whether

the ground meets an exception to the court rule or not. The Spears citation clearly says

“generally.” Gibbons clearly asserted claims under a Knaffla-bar exception: “lawyer-client

communication,” where correspondence from Gibbons to counsel indicating the desire to

research mental health diagnosis from the time of the offense is expressed will be provided if the

writ is granted. This is evidence outside the record, meeting a Knaffla bar exception according to

White (App I).

Gibbons

Lastly, there is no “explicit reliance” on a state procedural rule - i.e., Knaffla for the

instant ineffective assistance of counsel ground for failure to investigate a mental illness defense

when prima facie evidence exists indicating the appropriateness of a bifurcated trial - in a

manifest injustice guilty plea context.

To be certain, even as Gibbons asserted exceptions to the Knajfla-bax in his petition and

memorandum for his second post-conviction, it is the state appellate court opinion (App. G p. 3,

lines 17-19) that clarifies, and leaves open, exceptions to the Spears rule. Additionally, the

entire petition was denied on Knaffla grounds, which, as already discussed, does not apply to

Gibbons’ particular precise procedural position, whereas the Spears court, which is only

“similar” to the Knaffla court, does apply to Gibbons’ particular precise procedural position. To

further discuss how the Minnesota appellate court opinion did not “actually rely” on a state

procedural rule to foreclose upon federal review, we can see from the report and

recommendation, (App. E) p. 13, that Knaffla, via Brown, does indeed bar review on petitions

after an appeal.

Brown v State, 746 N.W.2d 640, 642 (Minn 2008) (“Knaffla similarly bars

postconviction review of claims that could have been raised in a previous

postconviction petition.”)

The citation supra clearly shows that the Minnesota appellate court was not trying very hard to

foreclose upon federal review, as they could have cited Brown instead of Spears. But, even if the

Knaffla court does bar post-conviction review, thereby also barring habeas review, on successive

post-conviction petitions, this fact is not express, explicit, or clear (or even mentioned) from the

face of the Minnesota appellate court opinion. Clearly, the opinion made a point of citing the

Spears court in an attempt to bar review, but if the opinion would have cited the Brown court

Gibbons’ claim that the opinion did not rely on the Knaffla-bar to foreclose upon federal review

Gibbons

would hold little water. But since the opinion denied the entire petition, not individual grounds,

on Knaffla, where the Knaffla citation in the opinion clearly says Knaffla applies to petitioners

after an appeal, not successive petitions like Spears, and is absent a Brown citation clarifying

Knaffla, the opinion did not expressly, explicitly, or clearly state its’ rule upon which its’

judgment rested to bar federal review according to Harris and Coleman. Additionally, since the

opinion did not cite Knaffla, Spears, or Brown in the paragraph addressing ground three on op. p.

6, lines 3-14 (App G), the opinion did not “actually rely” on Knaffla to bar federal review under

Harris and Coleman. Finally, this Court can see from App. I that ground three was brought on

the second post-conviction petition alleging “Knaffla” bar exceptions on all three ineffective

counsel grounds, yet the opinion only discussed how claim two did not meet an exception to the

“Knaffla” bar, leaving ground three not completely addressed, therefore, no express, explicit, or

clear reliance on Knaffla to bar federal review has been asserted by the Minnesota appellate court

opinion - the last state court to render an opinion.

INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO INVESTIGATE

EVIDENCE PERTAINING TO A MENTAL ILLNESS DEFENSE

The third, and most important, reason to grant the instant certiorari petition is that

petitioner (Gibbons) is being held in violation of his constitutional right to effective counsel in a

guilty plea context.

When defense counsel is notified of a client’s reliance on anti-psychotic medication, not

being properly medicated, i.e., trying different medications over time to find one that works, but

amounting to not taking medications sometimes for a week or more at a time over a period of six

months, it is both deficient performance of counsel, and materially prejudices a client in the

Gibbons

client’s ability to make an intelligent and voluntary guilty plea, that results in a manifest injustice

where the only remedy is for Gibbons to be allowed to withdraw his guilty plea.

Mental health, and a mental health patient’s rights’, is of national importance as; it would

seem to Gibbons, there is little precedent in the way of describing what mental illnesses, where a

patient was experiencing symptoms of their illness at the time of the offense, are serious enough

to be prima facie evidence of an “insanity defense” investigation. Not only is there a general

stigma towards those who are mentally ill, and may exhibit positive symptoms from time to time,

but there also seems to be a general ignorance of a mental health patient’s rights’ in a guilty plea

setting.

If this Court would clarify what mental illnesses are serious enough, when experiencing

symptoms of said illness[es], at the time of the offense, this Court would be showing its ability to

stay current with modem psychiatric evidence that sometimes; when a person has committed a

crime that is completely out of character, and this person has a history of mental illness

treatment, positive symptoms of the illness getting worse shortly before the instant offense, and

reliant on anti-psychotic medication, defense counsel has an obligation to investigate the client’s

mental health history because, as said: “sometimes” said patient is not 100% guilty of the instant

crime, i.e., does not have the requisite mens rea.

Gibbons has found no U.S.S.C precedents regarding the mental illness patient’s rights’ of

a defendant in a guilty plea context for trial counsel failing to investigate a defendant’s version of

the facts surrounding the crime - to wit: a defendant’s reliance on anti-psychotic medication to

remain law abiding. Gibbons would go so far as to say, this Court would be viewed in a positive

light if the Court were to show empathy for such a petitioner’s situation as has been described.

Gibbons

Mental health awareness has come to the forefront in many situations regarding

enforcement policies in regards to a person experiencing a mental health crisis confronted by

police, at least in Minnesota. Police have been required to undergo more training in this regard

in Minnesota, as well; and it would seem the local district court needs to train its’ public

defender as to what a mental illness patient’s rights’ are in a guilty plea context, too. This Court

should set a national precedent, by granting the certiorari writ for this petition, to further national

awareness of some of the obstacles a person struggling with mental illness may have to

overcome, especially in regards to unintentionally harming those a patient loves when

experiencing positive symptoms of their serious mental illness. This Court should grant the writ

to reduce some of the stigma surrounding mental illness and, as a side note, it would show that

even the best intentions to manage mental health do not always work.

COUNSEL’S PERFORMANCE REQUIREMENT (DEFICIENCY PRONG OF

STRICKLAND)

Strickland, 466 US 668.

Paragraph 4 of the letter from counsel dated 7-17-15 (not provided):

“...I do not think there would be anything beneficial towards your case in those

records.” ... “we do not need any additional records on that point, especially if

they suggest you were refusing to be medicated or follow medical advice (because

that actually suggests you would not do well on probation).”

It may be true that if petitioner (Gibbons) says things that would lead counsel to believe

certain lines of investigation may be fruitless or even harmful, counsel can choose to do no

investigation along that avenue. Contrary to that notion, in the instant certiorari / § 2254 claim,

is that Gibbons stating, in the letter dated 2-19-15 (addressed to chief public defender - not

provided): “My medications were changed every week for 3 weeks and then completely

Gibbons

discontinued,” and stating to counsel in face-to-face conversations that appellant stopped taking

medications, should not have led counsel to not investigate or, to the point; believe that a

schizophrenic not taking medication shows un-amenability to probation. Here is why:

State v Wall, 343 N.W.2d 22, 25 (Minn. 1984) “the refusal of a schizophrenic to

take his medications is itself a result of the disease.”

Knowing that counsel effectiveness standards do not change upon geographic location:

Hawkman v Paratt, 661 F.2d 1161, 1167 (8th Cir.) (1981) “The counsel

effectiveness standards ... are federal constitutional requirements which do not

vary from one geographic location to another”

let us take a look at what the 5th circuit says about counsel's obligation to investigate once

notified of client’s mental problems - that counsel is indeed obligated.

Bouchillon v Collins, 907 F.2d 589, 597 (5th Cir.) (1990) “[i]t must be a very rare

circumstance indeed where a decision not to investigate would be “reasonable”

after counsel has notice of the client’s history of mental problems.”

And

“The Court concluded that this was not a reasonable trial tactic: to do no

investigation at all on an issue that not only implicates the accused’s only defense

...is not a tactical decision. Tactical decisions must be made in the context of a

reasonable amount of investigation, not in a vacuum.”

Let us look at what the 8th Circuit says about deficient performance; that the 8th circuit

has repeatedly stated reasonable performance includes an adequate investigation:

U.S. v Hernandez, 450 F. Supp 2d 950, 969 (8th Cir) (2006) “On the “deficient

performance” prong of the “ineffective assistance” analysis, the Eighth Circuit

Court of Appeals has repeatedly stated that “[reasonable performance of counsel

includes an adequate investigation of facts, consideration of viable theories, and

development of evidence to support those theories.” Lyons v Luebbers, 403 F.3d

585, 594 (8th Cir 2005) (quoting Foster v Lockhart, 9 F.3d 722, 726 (8th Cir

1993)).” ... “The strength of the presumption that counsel’s performance was

reasonable “turns on the adequacy of counsel’s investigation.” White v Roper,

416 F.3d 728, 732 (8th Cir 2005). Where, for example, counsel’s investigation

was “too superficial” to reveal the strengths or weaknesses of testimony

Gibbons

supporting the government’s or the defendant’s case, or to discover evidence

providing powerful support of the defendant’s version of events, “/he presumption

of sound trial strategy founders ... on the rocks of ignorance” id.” (emphasis

added)

It should be apparent from the cited: 5th circuit case law (emphasis added), and 8th circuit

case law (emphasis added) that counsel is to communicate with client about the case, and how to

proceed, and where to investigate. Counsels’ decision not to investigate after having notice of

Gibbons’ history of mental problems only shows counsel’s complete lack of investigation, which

is “unreasonable” under Bouchillon, and “founders on the rocks of ignorance” under Hernandez,

which falls under the deficiency prong of Strickland: 466 US 668.

COUNSEL’S FAILURE TO INVESTIGATE AMOUNTS TO A MANIFEST

INJUSTICE GUILTY PLEA WITHDRAWAL STANDARDS DUE TO PLEA BEING

INVOLUNTARY AND UNINTELLIGENT

Johnson specifies two 8th circuit cases where a defendant is prejudiced if counsel does

not do an in-depth investigation of the defendant’s version of the facts before convincing his

client to plead guilty.

Johnson v Mabry, 752 F.2d 313, 315-16 (1984) (8th Cir) (1985) “[*315] Within

, the context of an arraignment hearing, however, where the defendant enters a

guilty plea, the issue ofprejudice necessarily centers upon whether the attorney’s

failure to competently investigate any material facts prejudiced defendant’s

ability to make an intelligent and voluntary plea of guilty. ... For this reason,

cases in which the undiscovered information would have been helpful to the

defense are distinguishable. See [*316] e.g., (emphasis added)

Ford v Paratt, 638 F.2d 1115 at 1118 (8th Cir) (1981) (counsel’s failure to

substantiate rumored pregnancy of prosecutrix in rape case and rumor as tool to

force defendant to plead guilty prejudiced the defendant’s ability to make

intelligent and knowing decision)”

Gibbons

Ford specifically states that if Counsel did not investigate the plea is unintelligent and

involuntary and manifest injustice has occurred.

Morrow clearly states that if counsel failed to investigate with eye-witnesses then the

defendant was prejudiced in regards to being able to make an intelligent and knowing guilty plea.

Morrow v Paratt, 574 F.2d 411, 413-14 (8th Cir.) (1978) (counsel’s failure to

interview one of the robbery participants, who had stated that defendant had tried

to avoid involvement in announced robbery, prejudiced defendant’s ability to

decide whether to plead guilty)

Hernandez clearly states that “prejudice,” in a guilty plea context, revolves around what

the appellant can specifically show, if not but for counsel’s failure to investigate, and how that

evidence would have changed the outcome of a trial.

U.S. v Hernandez, 450 F. Supp 2d 950, 970 (8th Cir) (2006) “to demonstrate

“prejudice” in the context of a claim of failure to investigate, the defendant cannot

rely on general allegations of what a proper or reasonable investigation would

have revealed, but must show specifically [**49] what would have been revealed

by further investigation and how the further evidence would have made a different

outcome to the trial a reasonable probability. See, e.g., Palmer v Clarke, 408 F.3d

423, 444-45 (8th Cir 2005).”

Clearly; had counsel investigated with eye-witnesses to Gibbons’ behavior, at the time of

the offense, in the form of expert psychological and psychiatric testimony, one could reasonably

juxtapose how he was prejudiced by defense counsel not investigating with eye-witnesses; just as

Morrow was, because the release of information (R.O.I.) (not provided), in the instant claim,

provides testimony that strongly supports a favorable rule 20.02 investigation finding as the

R.O.I. states Gibbons’ psychotic symptoms were so severe that they could only be treated in an

intensive day treatment program.

According Johnson, citing Ford-, a plea is unintelligent and involuntary if counsel fails to

investigate material facts, thus defendant is prejudiced. It is clear that counsel did no

investigation after counsel was notified of psych records from the time of the offense, in the

Gibbons

instant claim. Prejudice from inaction will be addressed separately under the “Prejudice” section

of this petition pp. 31-35

For the notion of brief economy: (since prejudice and deficiency are so closely

intertwined) Morrow is cited at length on pp. 31-32 of this petition, but it is under Morrow that

the notion of investigating eye-witnesses is “ordinary.” - deficiency. Deficiency is covered on

pp. 26-28 of this petition.

Gibbons upheld his end of the legal proceeding to tell counsel how Gibbons wanted to

pursue the defense in this case. Gibbons also: from the very beginning of the case, and before he

pled guilty, notified counsel that he was un-medicated at the time of the offense, and was

receiving psychiatric care at the time of the offense, and told counsel Gibbons’ diagnosis as

schizoaffective.

Gibbons will provide the letters to and from counsel and Gibbons, as well as the

diagnosis included in the R.O.I. from River Ridge, an outpatient mental illness / chemical

dependency treatment center, that diagnosed Gibbons as needing an intensive day treatment

program to treat his schizoaffective and major depression, at the time of the offense, if certiorari

is granted.

These exhibits have already been included in the initiating post-conviction petition, and

documents under habeas rule 7 would also be submitted, where this Court would need to

determine if habeas rule 7 should be granted.

Gibbons

PREJUDICE (SECOND PRONG OF STRICKLAND)

Strickland, 466 US 668.

One of the guilty plea questions asks if Gibbons was trying to protect the victim.

Gibbons said “No.” According to the reply brief of the post-conviction brief, p. 18 (not

provided); Gibbons stated that he believed, at the time of the offense, that he was trying to

protect the victim in his paranoid schizophrenic psychotic state. Had counsel investigated, the

question may have been answered differently, and intelligently. Morrow states that an alleged

ineffective assistance of counsel claim evaluation is a two-step process in the 8th circuit. Morrow

also states that ordinarily a reasonably competent attorney will envestigate witnesses.

Morrow v Paratt, 574 F.2d 411-413 (1978) “Overview: Pursuant to a plea

bargain, the prisoner entered a plea of guilty to a robbery charge and a firearm

count was dismissed. ... The court found as a matter of law that the prisoner

received ineffective assistance of counsel, because his attorney failed to

adequately investigate the facts before advising him to plead guilty. Further, the

prisoner was materially prejudiced by his attorney’s failure to interview

eyewitnesses.”

[412] “The evaluation of a habeas corpus petition alleging ineffective assistance

of counsel is a two-step process in the 8th. Circuit. Rinehart v Brewer, 561 F.2d

126, 131 (8th Cir. 1977). First, the defendant must show that his attorney failed to

exercise the customary skills and diligence that a reasonably competent attorney

would perform under similar circumstances. Benson v United States, 552 F.2d.

224 (8* Cir. 1977) cert, denied, 434 US 581, 98 S. Ct 164, 54 L.Ed 2d 120

(1977); Pinnell v Cauthron, 540 F. 2d 938, 939 - 40 (8th Cir. 1976); United States

v Easter, 539 F.2d 663, 666 (8th Cir. [*413] 1976) cert denied, 434 US 844, 98 S.

Ct 145, 54 L. Ed 2d 109 (1977). Secondly the defendant must show he was

materially prejudiced in the defense of his case by the actions or inactions of

defense counsel. Rinehart v Brewer, supra, 561 F. 2d at 131; Benson v United

States, supra, 552 F.2d at 224; Pinnell v Cauthron, supra, 540 F.2d at 943;

Crimson v United States, 510 F.2d 356, 358 (8th Cir. 1975).”

“This court recently stated that ordinarily a reasonably competent attorney will

conduct an in-depth investigation of the case which includes an independent

investigation of the witnesses. Benson v United States, supra, 552 F.2d at 255.”

(emphasis added)

Gibbons

In the Morrow case: counsel did do a lot of investigating but never investigated

eyewitnesses (paraphrased).

[*412] “The district court concluded that in light of the lack of evidence before it

that Morrow admitted to his attorney that he intended to rob the gas station or the

he rendered assistance to the others, it was incumbent upon Morrow’s attorney to

further investigate the facts.”

To juxtaposition to the instant claim, Gibbons, from day one of the investigation, stated

he was un-medicated at the time of the offense, and in several letters to counsel afterwards,

expressed a desire to pursue mental health aspects of the case, for serious mental illnesses.

Morrow found that the client was materially prejudiced by counsel not investigating

eyewitnesses.

[413] “In regard to the second inquiry of the ineffective assistance of counsel

claim, the district court found that Morrow was materially prejudiced by his

attorney’s failure to interview eyewitnesses. The district court properly noted that

had Morrow decided to stand trial, a key factual issue would have centered upon

Morrow’s intent. With intent as a critical issue, any corroboration or lack thereof

of Morrow’s rendition of the robbery would be significant.” (emphasis added)

This is prejudice under Strickland: 466 US 668

To juxtaposition the instant case to Morrow, Gibbons is stating that counsel did not

investigate with eye-witnesses whom could provide expert eye-witness testimony, and in fact

could have provided documented symptoms of his symptomatic psychotic state from the time of

the offense, even though counsel was notified that such potentially exculpatory evidence was

available (deficiency). Since Gibbons is claiming that he would be presenting an “insanity

defense,” the central issue at a trial would be whether he held the requisite mens rea at the time

of the offense to be held guilty, much like Morrow’s case where intent would be a central issue

to Morrow’s claim (although Morrow was not doing an “insanity defense”). Intent in both

Morrow's case and Gibbons’ case would be a central issue, however, so in the instant case expert

Gibbons

eye-witness psych reports would have been very helpful in showing that there was prima facie

evidence of the appropriateness of a rule 20.02 investigation for the purpose of a bifurcated trial.

Nichols v Bell, 440 F. Supp. 2d 730, 759 (Term.) (2006) “To establish prejudice, a

petitioner who enters a guilty plea must show that there is a reasonable

probability that, but for counsel’s errors, he would have not pleaded guilty and

would have insisted on going to trial.” (emphasis added)

Gibbons will provide correspondence to counsel, from before sentencing, that he was at

least interested in withdrawing his guilty plea due to mental illness reasons, and letters from trial

counsel stating a refusal to investigate, if the certiorari writ is granted.

The magistrate stated that a case from 2017, Lee, was not applicable to Gibbons’

assessment of the parameters of how a guilty plea can be withdrawn i.e., how prejudice is

assessed, but Gibbons counters with the notion that Lee is the current standard for all existing

plea withdrawal claims and is in accordance with two previous U.S. Supreme Court Cases, and

lifts the notion of “reasonable probability” from Nichols, supra:

Lee v United States, 137 S. Ct 1958, 1965 (2017) “Flores-Ortega, 528 U.S. 470 at

483, 120 S. Ct 1029, 145 L. Ed 2d 985. When a defendant alleges his counsel’s

deficient performance led him to accept a guilty plea rather than go to trial, we do

not ask whether, had he gone to trial, the result of that trial “would have been

different” than the results of the plea bargain. That is because, while we

ordinarily “apply a strong presumption of reliability to judicial proceeding,” “we

cannot accord” any such presumption “to judicial proceedings that never took

place.” Id at 482-483, 120 S. Ct 1059, 145 L. Ed 2d 985.”

“We instead consider whether the defendant was prejudiced by the “denial of the

entire judicial proceeding ... to which he had a right.” Id at 483, 120 S .Ct 1029,

145 L. Ed. 2d 985. As we held in Hill v Lockhart, when a defendant claims that

his counsel’s deficient performance deprived him of a trial by causing him to

accept a plea, the defendant can show prejudice by demonstrating a “reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.’’'’ 474 U.S. at 59 (52), 106 S. Ct 366, 88 L.

Ed 2d 203.” (emphasis added)

Gibbons

There is a “reasonable probability that but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial” id, as will be addressed via exhibits of

correspondence between counsel and client if certiorari is granted.

The “Insanity Defense” section of this petition, p. 35, shows that there is a “reasonable

probability” id., that Gibbons would have not only “not have pleaded guilty and would have

insisted on going to trial,” id., but also that the result would have been that he would be found

not guilty, so long as at least one psych doctor found that he did not know that his actions were

wrong at the time of the offense.

Let us look at the potentially exonerating factors:

1. Psychiatric information from the time of offense that states Gibbons should have been

in a mental health hospital for paranoid schizophrenic delusions.

2. Actively pursuing mental health probation directive - weekly emails to probation

officer would prove this. (Addressed in letter to counsel dated 1-24-15 (not

provided), as a character witness.) (This P.O. would need an affidavit under habeas

rule 6.)

a. 2-3 serious mental illnesses listed under Statute 245.462 Subd. 20 (c) (4)

3. Documented mental health diagnoses, from several doctors with all the same

diagnoses, going back to 2006. (Would have been verified had counsel pursued Dr.

Kennedy, from River Ridge, at the time of the offense, at least, to verify history of

diagnosis from 2006.) (Diagnosis from Dr. Johnson - 2006 - has been discovered by

Gibbons and will be placed in evidence at the appropriate evidentiary hearing, or

habeas rule 7. (These doctors would need an affidavit under habeas rule 6.)

Gibbons

4. Character witnesses who could attest that instant offense was completely out of

character. (The character witnesses were listed in the letter to counsel dated 1-24-15

(not provided) that will be placed in evidence at the appropriate evidentiary hearing,

or habeas rule 7.) (These witnesses would need an affidavit under habeas rule 6.)

It should be apparent from pp. 31-35 that a petitioner is prejudiced if counsel does not

investigate with eye-witnesses to the crime, or behavior at the time of the offense, in this instant

certiorari / § 2254 claim, under Strickland, 466 US 668.

“INSANITY DEFENSE,” AND THE REASONABLE PROBABILITY THAT THE

PETITIONER WOULD BE FOUND NOT GUILTY, OR INSIST ON A TRIAL, Le., NOT

PLEAD GUILTY

Petitioner (Gibbons) has a history of mental illness going back to when he first reported

his symptoms to Dr. Johnson at 1800 Nicollet Ave in Minneapolis in 2006. Those symptoms

include: religious delusions of grandiosity, recurring intrusive thoughts, and paranoid

schizophrenic delusions.

Gibbons moved in with his new girlfriend and her two daughters. There was never even

a hint of sexual deviancy perpetrated to the minor children - Gibbons was at least intermittently

taking his anti-psychotic medications. This went on for roughly 18 months before Gibbons’

medications were turned off by Dr. Kennedy at the MI / CD treatment center River Ridge, only

then did the sexual penetration start.

Gibbons is not going to go into great detail about what his thoughts were as he will save

that information for the state and defense psychologist and psychiatrist once a rule 20.02

investigation is awarded, but Gibbons will give a general idea of his thoughts instead.

Gibbons

Religious delusions of grandiosity: Gibbons came to believe that God had answered his

prayers in the sense that God was providing all three females for the interest of marriage, once

the daughters were of age, and could be surrogates, as the mother could not conceive. It is not

that God was talking to him, it just all seemed to fall into place and seemed pre-ordained. God

had approved of the grooming process of pleasing Gibbons so long as marriage was the end

result.

Recurring intrusive thoughts: The same thought, whether it be a sentence fragment or a

grand design, will continually recur for hours on end should Gibbons not have anti-psychotic

medications at least every few days. Thoughts become actions, if applicable, (like burglary) and

Gibbons has no defense against his mind telling him what to do, so he is seemingly forced to

follow through with his thoughts via actions.

Paranoid schizophrenic delusions: Gibbons believed that the way the victim was acting

towards other males (adult and juvenile) outside the home was improper, and that she was just

opening herself up to sexual attack by other males in that she acted very flirty. Gibbons was

trying to show the victim what her actions meant to males, that she was acting promiscuous, and

that by performing the said act he was actually protecting her in the sense that she was learning

what her actions meant to males, and why she should stop, that she was inadvertently acting

sexy, and inviting males to use her sexually, so Gibbons performed the said act in a manner that

gave her the distinct impression that he was only interested in instant gratification (this issue

needs to be addressed in trial). Couple this with recurring thoughts to educate and protect the

child, and the false psychotic belief in pre-destined grooming for polygamy approved by God, so

long as the victim was never physically hurt, and some jurors may find that Gibbons did not

Gibbons

know the nature of the act, or that it was wrong, at the time of the offense. This is applying the

MN statute 611.026 defense in conjunction with a rule 20.02 investigation.

What Gibbons sees happening, according to his insanity defense investigation is: that; if a

rule 20.02 investigation is permitted, then the state and defense each will hire a psychologist and

psychiatrist to speak with him to determine his state of mind at the time of the offense. The state

doctors will find that Gibbons did know what he was doing was wrong, and the defense doctor’s

will find that he did not know what he was doing was wrong. Insanity defenses are won by a fair

preponderance of the evidence in Minnesota. At this point in the case both psych opinions are in

equipoise. Now take into consideration:

1. Documented mental illness going back to 2006 with the same diagnosis by every doctor,

2. Criminal record revolving around mental illness going back to 2008 where the case in

2010 expressly acknowledged that Gibbons needs medication to remain law abiding

(medication directive),

3. Character witnesses that will testify that Gibbons’ actions were completely out of

character,

4. The offenses only happened while in an un-medicated state,

5. Diagnosis from the time of the offense says that Gibbons should have been hospitalized

for serious mental health reasons,

6. And this diagnosis is from the same time as the offense, but before arrest,

7. Gibbons has no history of sexual deviancy in juvenile or adult record,

8. Gibbons stopped the offense when victim said she did not want to do “what we do

together” anymore,

9. Mental health symptoms get worse over time,

Gibbons

10. Symptoms can return immediately and worse once medications are stopped,

11. Gibbons has been hospitalized in the past for mental illness reasons, and

12. Gibbons turned himself in to MI / CD inpatient treatment at twin town in St. Paul, MN on

8-8-13 where his medications were adjusted and henceforth he remained law abiding for

18 months until the offense was reported.

and all of a sudden the defense’s psych opinion’ carries more weight than the state’s psych

opinion’.

Gibbons should be permitted to withdraw his guilty plea and be awarded a trial where he can

provide expert psych testimony about his thoughts and behavior at the time of the offense

(§611.026) & (rule 20.02) to convince jurors that they should believe the defense psych doctor

over the states psych doctor as in Minnesota 611.026 cases are won by a preponderance of the

evidence, and jurors can choose to believe either the state’s or defense’s doctor’s opinions when

voting guilty or not guilty.

CONCLUSION

Petitioner (Gibbons) has shown that the last state court to render an opinion, the

Minnesota appellate court, did not make a “plain statement” under Caldwell, Harris, and

Michigan to foreclose upon federal habeas review as the purported plain statement talked about

both the Knaffla-cowt-bax but also mentioned that the local district court did not abuse its

discretion when denying post-conviction relief on Gibbons’ second post-conviction petition.

This is patently not “plain” as two topics are mentioned - Knaffla, and abuse of discretion.

Gibbons has shown that the last state court to render an opinion, the Minnesota appellate

court, did not “actually rely” on a state procedural rule to bar federal habeas review under both

Gibbons

Harris and Coleman as the opinion mentioned three courts to bar review but did not discuss

which rules barred which of Gibbons three ineffective assistance of counsel grounds - especially

the instant certiorari / § 2254 petition ground one, ground three in the opinion. It is .incumbent

upon this Honorable Court to determine if the asserted non-federal ground, allegedly relied upon,

is sufficient to bar federal review, and Gibbons has discussed and compared at length his

particular precise procedural position - second post-conviction petition - to relevant 9th circuit

cases - Bean, Koerner, and Valerio - where it would seem to Gibbons that he has effectively

persuaded this Court to rule in his favor. Additionally, it is the Magistrate’s report and

recommendation that points out the Brown authority specifying that Knaffla bars successive post

conviction petitions, but this is not express, explicit, or clear from the Minnesota court of appeals

opinion. The merits of the underlying ground for relief should have been reviewed at all lower

federal levels as there is insufficient reliance on a state procedural rule to bar federal review.

Gibbons has shown under Bouchillon, Ford, Mabry, Morrow, and Hernandez that

counsel has an obligation to investigate a defendant’s version of the facts surrounding a crime,

particularly with eye-witnesses to behavior of a defendant at the time of the offense, and to not

investigate is both deficient performance and prejudices a defendant under Strickland and

Morrow. Additionally, Gibbons has shown that under Lee a petitioner must show that there is a

reasonable probability that a petitioner would have insisted upon trial if not but for counsel’s

error’s, and evidence pertaining to this will be presented if the certiorari writ is granted in the

form of correspondence between Gibbons and trial counsel before and after he pled guilty, as

well as the R.O.I. detailing the hospitalization recommendation diagnosis.

The petition for a writ of certiorari should be granted to set national precedents in regards

to: what a “plain statement” is not, what “actually relying” on a state procedural rule is not, and

Gibbons

what rights a mental health patient has, in a guilty plea context, when there is evidence that a

defendant was suffering positive symptoms of serious mental illnesses at the time of the offense,

and whether said evidence is prima facie evidence for an “insanity defense,” as well as setting a

precedent to show what a “reasonable probability of insisting on trial” consists of.

♦

Gibbons

Pages: 40

Respectfully submitted,

Andrew Gibbons

# 247670

MCF-Moose Lake

1000 Lake Shore Dr.

Moose Lake, MN 55767

Date:

Per,. Q \, 061q

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.