Petition for Writ of Certiorari — Linville v. Minnesota (No. 08-1336)

Supreme Court, U.S.

FILED

\a| (I) 081336 MARG - 2009

No.

OFFICE.OF THE CLERK

In the

Supreme Court of the United States

HAROLD GLENN LINVILLE JR.,

Petitioner,

V.

STATE OF MINNESOTA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Thomas E. Bauer

Counsel of Record

THOMAS E. BAUER & ASSOCIATES

14225 Highway 55

Plymouth, MN 55447

(763) 577-1177

Attorney for Petitioner

2009 — Bachman Legal Printing @ (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

QUESTION PRESENTED

if the State and Defendant agree that Whitten v.

State, 690 N.W.2d 561 (Minn. App. 2005) (conviction

for felon-in-possession vacated where defendant’s

previous probation discharge order restored

defendant to all civil rights and left blank the

prohibition against firearm possession) directly

applies to warrant a dismissal of a charge of felon in

possession of a firearm, does the fact of arraignment

in the dismissed case then negate the application of

Whitten in a future case on the same charge?

TABLE OF CONTENTS

Page

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CITATIONS OF OPINIONS AND ORDERG.............. 1

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aeveaeeeee © OF THE CASE. .................c00cccoesccncsceees 2

REASONS FOR GRANTING REVIEW................:060+ 3

APPENDIX

Opinion, State of Minnesota Court of Appeals,

State v. Linville

755 N.W.2d 314 (Minn. Ct. App. 2008)............... App. 1

Decision and Order of the District Court,

Case Number K9-07-1667 (Sept. 4, 2007)........... App. 7

Order Denying Further Review and Judgment,

Minnesota Supreme Court, A07-2323

ee cases App. 10

i

TABLE OF AUTHORITIES

Page

Cases

Raley v. Ohio,

360 U.S. 423, 439,79 S. Ct. 1257, 1267,

FE ee eR isc ekviccscesepircdencadsasecsancvesess 1,5

State v. Amos, 2003 Minn. App. LEXIS 1100,

No. CX-03-42, 2003 WL 22040016

CORINA, FN, THING, Be I osvcvevscccnssccccsvasceveccvecceseess 2

Whitten v. State,

690 N.W.2d 561 (Minn. App. 2005)........ 2,3, 4, 5,6

State v. Linville,

755 N.W.2d 314 (Minn. App. 2008).................... 2 <4

State v. Grillo,

661 N.W.2d 641 (Minn. App. 2008).................... 3, 4

State v. S.L.H.,

Fe PR ee TA CIMA, BG icine sincaecncesscsnacesivensess 5

Kratz v. Kratz,

477 F.Supp. 463,482 (D.C. Pa. 1979).............cc0ces00s: 6

Statutes

DR, Ce. FEED TI Gases sind ce vcsncdiwcutacabinsons 1, 2

UF. Coretta, KEV; FOG. Bic ccsvccccccssacccssvcccssoesscseve 2

Minn. Stat. Sec. 624.713, subd. 1(b); subd. 2(b).......... 2

Minn. Stat. Sec. 609.11, subd. 5(b); 609.101............... 2

mires. Stat. Soc. GE6.TIG, Ga. B.....cccccccsces ceccvssesevssess 3

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CITATIONS OF OPINIONS AND ORDERS

1. State of Minnesota vs. Harlod Glenn Linville, Jr.

Dakota County District Court, Case Number # K9-

07-1667 (Sept. 4, 2007).

2. State of Minnesota vs. Harold Glenn Linville, Jr.

State v. Linville, 755 N.W.2d 314 (Minn. Ct. App.

2008).

BASIS FOR JURISDICTION OF THIS COURT

Motion to dismiss forwarded to the trial court on

August 15, 2007. Motion denied by the trial court on

September 4, 2007. Question certified as “important

and doubtful” by the trial court on October 26, 2007.

Minnesota Court of Appeals certified question in the

affirmative on September 2, 2008, ruling against the

petitioner Linville. Application for certiorari to the

Minnesota Supreme Court for further review filed

October 1, 2008. Petition for further review denied

by the Minnesota Supreme Court, entry of judgment

December 8, 2008.

A case of judicial entrapment rarely passed on,

involving issues of separation of powers and due

process. The United States Supreme Court

recognized that the government violates an

individual's due-process rights when representatives

of the state mislead individuals as to their legal

obligations. Raley v. Ohio, 360 U.S. 423, 439, 79 S.

Ct. 1257, 1267, 3 L. Ed. 2d 1344 (1959). The due

process clause of the Minnesota Constitution

provides:

Sec. 7. Due process .... No person shall be held

to answer for a criminal offense without due process

of law, and no person shall . . . be deprived of life,

liberty or property without due process of law...

l

Minn. Const. Art. I, § 7. The Minnesota provision

parallels the federal constitutional provision. See

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

In this case, defendant was charged in May of

2007 with Possession of a Pistol by an Ineligible

Person under Minn. Stat. § 624.713, subd. 1(b); subd.

2(b); 609.11, subd. 5(b); 609.101. In December of

2006, defendant had previously been charged with

the same offense in Dakota County Court File K6-06-

3995. In April of 2007 (a month before the second

charge) defendant moved to dismiss the first charge

on the basis of State v. Amos, 2003 Minn. App.

LEXIS 1100, No. CX-03-42, 2003 WL 22040016

(Minn. App. Sept. 2, 2003); a case in accord with

Whitten. In September of 2007, while defendant's

motion was still under judicial advisement (and both

cases were then pending), the State dismissed its first

prosecution on the basis of Whitten.

However, the State argues that Whitten does not

bar conviction in the second case because defendants

are limited to one dismissal under Whitten at least

where they were previously arraigned on a charge the

State later dismissed as erroneous. The district court

agreed, holding that arraignment in the erroneous

first prosecution provided Appellant “appropriate

notice” that he should not possess firearms as alleged

in the instant prosecution.

The Minnesota Court of Appeals answered the

certified question in the affirmative, and affirmed the

district courts denial of defendant's motion to

dismiss. State v. Linville, 755 N.W.2d 314 (Minn.

App. 2008). The Court of Appeals based its ruling on

the conclusion that Whitten required reconciliation in

2

light of its earlier decision in State v. Grillo, 661

N.W.2d 641, 645 (Minn. App. 2003), review denied

(Minn. 5 Aug. 2003). A petition for further review

was denied by the Minnesota Supreme Court, entry

of judgment December 8, 2008.

REASONS FOR GRANTING REVIEW

Both parties agree that Whitten applied to

dismiss the State’s first prosecution. At no time did

the State or trial court cite any case law or other

authority as to why Whitten would not apply to the

second prosecution. Yet, the Court of Appeals now

holds that it is Grillo which limits the scope of

Whitten. Yet, the Whitten court has already

informed us to the contrary:

The Grillo decision stated that a claim of

ignorance of the law is not an acceptable

defense. Jd. However, Grillo differs from the

instant case. Here, the state not only failed

to communicate the prohibition (as in Grillo),

but told appellant he would be eligible

to own a firearm. The statute does not

cover this type of situation. See Minn. Stat. §

624.713, subd. 3.

Whitten, at 565-66. (emphasis added). To its credit,

the State, upon inquiry at oral argument, agreed that

the Grillo scenario (a no-communication situation

results in no remedy by virtue of Minn. Stat. §

624.713, subd. 3) is not applicable here.

As such, we can see two distinct lines of cases.

One where the defendant receives no communication

(Grillo), and one where a (purportedly false)

communication is made to him (Whitten). Clearly,

the instant case is the latter because’ the

3

communication was made. Indeed, we need only

resort to the trial court’s certified question, or the

parties’ “Agreed upon Statement as the Record” to

know that Whitten applied here. As such, if we are

now to resort back to Grillo for the second case, then

we should be able to point to a valid reason why the

(purportedly erroneous!) communication has been

taken away.

The answer provided by the lower appellate court

is that, “at no time after the (unlawful

charge/arraignment) did the state communicate to

appellant that he was eligible to possess firearms.”

State v. Linville, 755 N.W.2d 314 (Minn. App. 2008).

The end result is that the State’s admittedly

erroneous charging removed the communication in

the trial court’s order dated June 14, 2006 that was

the very reason for the prosecution being erroneous

under Whitten. This is difficult to follow.

In looking at the dismissed complaint given to

defendant at his arraignment, there is no mention of

a discharge order. If there had been, perhaps the

Court would not even have arraigned defendant.

Contrary to the lower courts’ holdings, the

arraignment did not erase the judicial decision of

June 14, 2006. Whatever arguments might be made

about an arraignment in an erroneous prosecution, it

does not negate a court order, or defend away the

“most indefensible sort of entrapment.” Whitten, at

1 The State and the lower court refer to the discharge order as

“erroneous” but neither the judge nor district court has ever

been consulted as to whether it was in fact a clerical error (as

occurred in Whitten). As such, the law is now that the State can

refuse to honor a court order so long as they personally believe

the order is wrong.

4

565 (quoting Raley v. Ohio, 360 U.S. 423, 438, 79 S.

Ct. 1257, 1266, 3 L. Ed. 2d 1344 (1959)).

Whitten held that “[b]lecause the district court

order effectively advised appellant that he had the

right to possess firearms, the Due Process Clause of

the Minnesota Constitution and the Fourteenth

Amendment to the United States Constitution

prohibit his conviction.” Id. at 566. Now, the effect of

the lower published decision here is that the State

can prosecute a citizen erroneously in order to

eviscerate the very district court order that would

have prevented the conviction under Whitten. This is

an alarming result from a separation of powers

standpoint, since “[n]o person or persons belonging to

or constituting one of the (three branches) shall

exercise any of the powers properly belonging to

either of the others except in the instances expressly

provided in this constitution.” State vs. S.L.H., 755

N.W.2d 271 (Minn. 2008) (quoting Minn. Const. art.

III, § 1).

As a practical matter, too, the State of Minnesota

has many choices in prosecuting defendants of this

type. It can train law enforcement to gain evidence

designed at disproving reliance upon any previous

discharge orders concerning eligibility for firearm

possession. It can review discharge orders before it

prosecutes these cases. It can move the court to

modify those discharge orders it believes to be

erroneous. None of this occurred.

As such, it is the defense attorney who is charged

with the duty of advising his client that a barred

prosecution confidently moved to be dismissed in

April, means that a conviction will result on the

identical offense in May, when nothing about the

court’s discharge order had expired, been appealed, or

5

otherwise been modified or vacated in any way, at

any time. Indeed, it has been said that “when

entrapment has been caused by a judicial opinion, the

argument in favor of recognizing (a remedy) is even

more compelling, since courts are the very entities

charged with interpreting the law. Kratz v. Kratz,

477 F.Supp. 463, 482 (D.C. Pa. 1979).

There are, in all likelihood, hundreds of Whitten

dismissals which have occurred. Now, however, those

holding discharge orders are in a precarious position,

and not just if the State handed them a specious

complaint one time, but if they ever received a mixed

message that their orders do not mean what they say.

The State, however, is the last entity which should be

afforded the power to unscript a court order without

the court itself. Therefore, the question becomes,

what other entities are afforded that same perilous

power as a result of the government being given it?

Dated: March 6, 2009

Thomas E. Bauer

Counsel of Record

Thomas E. Bauer & Associates

14225 Highway 55

Plymouth, MN 55447

763-577-1177

Attorney for Petitioner

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-2323

State of Minnesota,

Plaintiff,

VS.

Harold Glenn Linville, Jr.,

Defendant.

Filed September 2, 2008

Certified question answered in the affirmative

Harten, Judge”

Dakota County District Court

File No. K9-07-1667

Lori Swanson, Attorney General, 1800 Bremer

Tower, 445 Minnesota Street, St. Paul, MN 55101;

and

James C. Backstrom, Dakota County Attorney,

Nicole E. Nee, Assistant County Attorney,

1560 West Highway 55, Hastings, MN 55033

(for plaintiff)

Rodd A. Tschida, 401 North Third Street, Suite 415,

Minneapolis, MN 55401 (for defendant)

Considered and decided by Ross, Presiding

Judge; Johnson, Judge; and Harten, Judge.

* Retired judge of the Minnesota Court of Appeals,

serving by appointment pursuant to Minn. Const. art.

VI, § 10.

App. |

SYLLABUS

If an individual arraigned on a charge of

possession of firearms by an ineligible person moves

successfully for dismissal of that charge under

Whitten v. State, 690 N.W.2d 561 (Minn. App. 2005),

the arraignment on the first charge precludes the

dismissal of any subsequent charges of possession of

firearms by an ineligible person under Whitten.

OPINION

HARTEN, Judge

The district court, after denying a motion to

dismiss a charge of possession of firearms by an

ineligible person, certified to this court the following

question:

If the State and Defendant agree that

Whitten v. State, 690 N.W.2d 561 (Minn.

App. 2005) (conviction for felon-in-

possession vacated where defendant's

previous discharge order’ restored

defendant to all civil rights and left

blank the prohibition against firearm

possession) directly applies to warrant a

dismissal of a charge of felon in

possession of a firearm, does the fact of

arraignment in the dismissed case then

negate the application of Whitten in a

future case on the same charge?

We answer the certified question in the affirmative

and affirm the district court's denial of the motion to

dismiss.

App. 2

FACTS

In September 2008, defendant Harold Linville

was convicted of felony unauthorized use of a motor

vehicle, a crime of violence within the meaning of

Minn. Stat. § 624.712, subd. 5 (2002). His conviction

made him ineligible to possess firearms. Minn. Stat. §

624313, subd. 1(b) (2002). He was placed on

probation, from which he was discharged in June

2006. On the discharge order, the box preceding the

statement "[yJou are not entitled to ship, transport,

possess or receive a firearm until 10 years have

elapsed since you have been restored to civil rights

and during that time you are not to have been

convicted of any other crime of violence" was

erroneously left blank.

In December 2006, appellant was charged

with, among other things, possession of a firearm by

an ineligible person (the December charge). He was

arraigned and given a copy of the complaint He

posted a bond and was released; his release order had

an "X" in the blank preceding the statement, "The

Defendant shall not possess any weapons/

ammo/firearms."

Defendant moved successfully to dismiss the

December charge, relying on an unpublished and

non-precedential decision of this court, State v. Amos,

No. CX-03-42, 2003 WL 22040016 (Minn. App. 2 Sept.

2003) (reversing and vacating conviction for

possession of firearms of individual whose notice of

discharge erroneously informed him he was restored

to all civil rights and did not inform him that he was

prohibited from possessing firearms).

In May 2007, defendant was again charged

with, among other things, possession of a firearm by

an ineligible person (the May charge); he was again

App. 3

arraigned and given a copy of the complaint.

Defendant moved to dismiss the May charge

on the same ground as the December charge, i.e., the

fact that, on the discharge order, the box preceding

the statement that he was ineligible to possess

firearms had been left blank, relying this time on

Whitten v. State, 690 N.W.2d 561, 565 (Minn. App.

2005) (reversing conviction of possession of firearms

because discharge order had no check before

statement prohibiting possession of firearms). The

district court denied defendant's motion to dismiss

the May charge, reasoning that “while [defendant]

had an argument initially fi.e., for the December

charge] that he had no notice that he was not to

possess firearms due to the defective discharge

notice, once he was arraigned on [the December

charge], appropriate notice was given."

Defendant challenged the denial of his motion

to dismiss and moved to certify to this court the

question of the repeated application of Whitten.

ISSUE

If an individual previously arraigned on a

charge of possession of firearms by an ineligible

person has moved successfully for dismissal of that

charge under Whitten v. State, 690 N.W.2d 561

(Minn. App. 2005), does that arraignment preclude

the dismissal under Whitten of a subsequent charge

of possession of firearms by an ineligible person?

ANALYSIS

"The failure of the court to provide this

information [ineligibility of individual convicted of

crime of violence to possess firearms] to a defendant

does not affect the applicability of the . . . prohibition

App. 4

or the felony penalty to that defendant." Minn. Stat. §

624.713, subd. 3(a) (2006). The statute applies to a

defendant whose discharge order did not notify him of

the prohibition because his crime was not classified

as a crime of violence until after his discharge. State

v. Grillo, 661 N.W.2d 641, 645 (Minn. App. 2003),

review denied (Minn. 5 Aug. 2008). This holding is

based on "a long-held principle in Minnesota that

ignorance of the law is not a defense when it would

have been possible, had [the defendant] made the

effort to do so, to learn of the existence of the

prohibition." Id.

But Whitten v. State, 690 N.W.2d 561, 566

(Minn. App. 2005), reversed a conviction of possession

of firearms by an ineligible person because the

defendant's discharge order did not have a check in

the blank preceding the statement of ineligibility to

possess a firearm. Whitten distinguished Grillo on the

ground that, in Grillo, the state merely "failed to

communicate the prohibition," whereas in Whitten,

the state "told [the defendant] he would be eligible to

own a firearm." Id.

Thus, the Whttten and Grillo holdings are

reconciled on the basis of what the state

communicated to the defendant concerning his

eligibility to possess firearms. Here, the state clearly

communicated to appellant that he was incligible to

possess firearms in December 2006 when it served

him with a complaint and arraigned him because he

had firearms in his possession. At no point after that

did the state communicate to appellant that he was

eligible to possess firearms. The district court

correctly found that the period during which

appellant could argue, under Whitten, that he had not

been informed of his ineligibility expired when he

App. 5

was arraigned on the charge of illegal possession of

firearms.

DECISION

We affirm the denial of defendant's motion to

dismiss and answer the certified question in the

affirmative: arraignment on a charge of ineligible

possession of a firearm precludes subsequent

application of the Whitten defense.

Certified question answered in_ the

affirmative.

Dated: 25 AUGUST 2008

s/

eames C. Harten, Judge

App. 6

STATE OF MINNESOTA IN DISTRICT COURT

COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT

State of Minnesota, Court File No. K9-07-1667

Plaintiff,

VS. OMNIBUS ORDER

Harold Glenn Linville II,

Defendant. pares

The above-entitled matter came on before the

undersigned for a contested motion hearing on

August 8, 2007. Nicole Nee, Esq., appeared on behalf

of the State, and Jason Bauer, Esq. appeared for and

with the Defendant. The parties requested additional

time for briefing the issue and the record was

considered closed and submitted as of August 15,

2007.

Now, therefore, based upon all the files,

records and proceedings herein, the Court makes the

following:

ORDER

a That Defendant's motion to dismiss is

denied, for the reasons more fully set forth in the

accompanying Memorandum.

z. That the parties contact central

assignment to obtain a pre-trial or trial date.

BY THE COURT:

DATED: 8-30-07 s/

Martha M. Simonett

Judge of District Court.

App. 7

MEMORANDUM

On September 9, 2003, Defendant was

convicted in Dakota County District Court of theft of

a motor vehicle, an offense defined under Minnesota

law as a crime of "violence." In 2006, he was

discharged from probation. Both parties agree that

the Order discharging him from probation was

defective in that it stated that the defendant was

restored to “all civil rights" and failed to advise him

that he was prohibited from possessing firearms for

10 years after discharge. (See Order discharging

Defendant from probation in Court File No. 194(3-03-

2112.)

On December 6, 2006, Defendant was charged

with a felony Possession of a Firearm by an Ineligible

Person and a second Count of Receiving Stolen

Property for an incident occurring on December 4,

2006. He was arraigned by Judge Sutherland

regarding these charges and bail was set with

conditions of release including no possession of

firearms or weapons. On May 9, 2007, defense

counsel in K6-06-3995 filed a Memorandum providing

a copy of the defective discharge and case law

indicating that it is a violation of due process to fail to

notify the Defendant that he is prohibited from

possessing firearms and then prosecuting him for it.

On July 24, 2007, Count I was dismissed in this

matter. The Defendant pleaded guilty to Count II on

July 24, 2007, and sentencing is scheduled for

September 11, 2007.

The instant case arises out of an incident

which occurred on May 15, 2007. Defendant was

arrested following the discovery of weapons in his

possession. The officers at that time inquired

regarding the conditions of his release on K6-06-3995,

App. 8

and were advised that court records showed that

Defendant was to have no possession of weapons.

Accordingly, he was placed under arrest and

ultimately charged with Possession of a Pistol by an

Ineligible Person.

Defendant relies primarily on Whitten v. State.

690 .N.W.2d 561 (Minn. Ct. App. 2005), which holds

that it is a violation of due process for the

government to mislead individuals as to their legal

obligations. The Court notes that the due process

issue in Whitten was that of notice to the Defendant

concerning his legal obligations. Here, the Court

agrees with the State that while Defendant had an

argument initially in K6-06-3995, that he had no

notice that he was not to possess firearms due to the

defective discharge notice, once he was arraigned on

K6-06-3995, appropriate notice was given and his

claim of a violation of due process fails.

M.M.S

STATE OF MINNESOTA

IN SUPREME COURT

A07-2323

State of Minnesota,

Respondent,

vs.

Harold Glenn Linville, Jr.,

Petitioner.

ORDER

Based upon all the files, records, and

proceedings herein,

IT IS HEREBY ORDERED that the petition of

Harold Glenn Linville, Jr., for further review be, and

the same is, denied.

Dated: November 18, 2008

BY THE COURT:

s/

Eric J. Magnuson

Chief Justice

App. 10

STATE OF MINNESOTA JUDGMENT

State of Minnesota, Plaintiff, vs. Harold Glenn

Linville, Jr., Defendant

Court of Appeals

Appellate Court # A07-2323

Trial Court # K9-07-1667

Pursuant to a decision of Court of Appeals duly

made and entered, it is determined and adjudged that

the certified question from the Dakota County District

Court, Hastings Criminal Division ts answered in the

affirmative in accordance with the opinion and

judgment is entered accordingly. A certified copy of

the entry of judgment and the court's decision ts

herewith transmitted and made part of the remittitur.

Dated and signed: December 8, 2008

FOR THE COURT

Attest: Frederick K. Grittner

Clerk of the Appellate Courts

By: s/

Assistant Clerk

App. Il