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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0455%3A1. Public record. Not legal advice.