Amen El v. Schnell

Background

Pharaoh El-Forever Amen El, representing himself, filed a petition under 28 U.S.C. § 2254 challenging his state-court conviction. He had been convicted of second-degree murder on November 3, 2015, and sentenced to 203 months in prison. His direct appeal and request for review by the Minnesota Supreme Court were unsuccessful. He later filed three state post-conviction petitions, each of which was denied under Minnesota’s rule known as Knaffla.

Amen El then filed the federal petition and a motion asking the court to stay it while he returned to Minnesota court to present an argument based on Simmons v. United States, 390 U.S. 377 (1968). He said he had been forced to choose between his right to a speedy trial and his right to effective assistance of counsel. He acknowledged that he had not exhausted all of his arguments in state court. The court stated that the merits of the federal petition were not before it.

Report and Recommendation and Objections

A magistrate judge recommended denying the motion to stay. Under the stay procedure for a petition containing both exhausted and unexhausted claims, a petitioner must show good cause for failing to exhaust the claims, that the claims may have merit, and that the petitioner was not intentionally delaying the case.

Amen El objected that he had asked his appellate lawyer to raise Simmons but the lawyer refused. He did not argue, however, that the lawyer’s performance was constitutionally ineffective. The court also observed that Amen El had filed a self-represented reply brief during his direct appeal but had not explained why he did not mention Simmons there. The court concluded that he had not shown good cause.

Court’s Analysis

The court adopted the magistrate judge’s conclusion that attorney error causing a procedural default does not establish good cause unless the lawyer’s performance was constitutionally deficient. Because Amen El did not make that argument, the court overruled his objection concerning good cause.

The court also overruled Amen El’s objection concerning Simmons. It explained that the magistrate judge had not decided that Simmons could never apply to Amen El’s case. Rather, the recommendation concluded that a Simmons-based claim was barred by Knaffla because Amen El had not raised it on direct appeal and had not shown that an exception applied. Amen El provided no argument showing that Knaffla did not bar the claim or that an exception applied.

Disposition

The court ordered that Amen El’s objections to the magistrate judge’s report and recommendation were overruled, the report and recommendation was adopted, and the motion to stay was denied. The court did not decide the merits of the § 2254 petition or whether the claims were procedurally defaulted.

Judge

The order was entered by Chief Judge John R. Tunheim on March 11, 2019.