Haywood v. Minn. D.O.C

1

Xavier Alfred Haywood, Plaintiff, v. Minnesota D.O.C., Respondent.

No. 21-cv-2565 (KMM/DJF)

United States District Court, D. Minnesota

May 1, 2023

REPORT AND RECOMMENDATION

Dulce J. Foster United States Magistrate Judge

This matter is before the Court on Petitioner Xavier Alfred's Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. § 2254 (ECF No. 1). Mr. Haywood was convicted in Minnesota state court for aiding an offender after the fact for his role in a 2017 murder. See State v. Haywood, 2020 WL 4743525, at *1 (Minn.Ct.App. Aug 17, 2020). Mr. Haywood was sentenced to 190 months in prison (ECF No. 9-3)^[1]and at the time of his Petition was serving his sentence at the Minnesota Correctional Facility - Fairbault (“MCF-Fairbault”) (ECF No. 1 at 1). Mr Haywood argues his conviction and sentence should be overturned on grounds that: (1) he was denied his constitutional right to an impartial judge; (2) he was denied his right to a fair trial and due process when the presiding judge admitted alleged hearsay testimony and prohibited him from calling the declarant to the stand; (3) the presiding judge abused his sentencing discretion by setting his crime severity level at ¶ 10 out of 10; and (4) he was denied effective assistance of counsel when the presiding judge denied his motion for a continuance three weeks before his trial began. For the reasons given below, the Court recommends dismissing Mr. Haywood's Petition.

I. Background

a. Factual Background

Mr. Haywood's conviction arises from his alleged role in the murder of William Grahek at Mr. Grahek's residence during an attempted burglary and robbery on February 14, 2017. See State v. Haywood, 2020 WL 4743525, at *1 (Minn.Ct.App. Aug. 17, 2020). The State presented evidence at the trial demonstrating Mr. Haywood met Mr. Grahek about a month or two before the murder so Mr. Grahek could buy marijuana from Mr. Haywood and Mr. Haywood could buy ecstasy from Mr. Grahek. Id. Mr. Haywood met Mr. Grahek at his residence for the exchange. Id. During the meeting, Mr. Grahek took Mr. Haywood to his basement bedroom, where Mr. Grahek kept a safe containing money and drugs. Id.

Sometime later, Mr. Haywood informed Noah Baker of the safe Mr. Grahek kept in his house containing money and drugs. Id. Mr. Baker, along with Deandre Davenport and Noah King, decided to rob Mr. Grahek at his residence. Id. At around noon on February 14, 2017 there were several contacts between Mr. Davenport's cell phone and one of Mr. Haywood's cell phones. Id. At roughly 2:00 p.m., Mr. Davenport, Mr. Baker and Mr. King drove to Mr. Grahek's house. Id. The three men entered Mr. Grahek's house, where they ultimately encountered, shot and killed Mr. Grahek. Id.

Mr. Davenport and Mr. Haywood resumed contact beginning at 4:14 p.m. that same day, texting or calling each other about 20 times. Id. at *2. At trial, over Mr. Haywood's objection, Mr. Baker testified he had heard Mr. Davenport tell Mr. Haywood over the phone that they “did a robbery and it went bad.” Id. In a recorded statement played for the jury, Mr. Baker told law enforcement Mr. Haywood advised him and Mr. Davenport to get a hotel room “[t]o get away.” Id. Mr. Haywood's girlfriend booked Mr. Davenport a hotel room at the latter's request. Id. Mr. Haywood and his girlfriend picked up Mr. Davenport and drove him to the hotel. Id. Mr. Haywood's girlfriend checked in upon arrival, gave the key to Mr. Davenport, and then left the hotel with Mr. Haywood. Id. Mr. Baker arrived at the hotel later. Id. Mr. Haywood's cellphone records showed that throughout that night he ran internet searches for breaking news in Duluth, Minnesota, the location of Mr. Grahek's residence. Id.

Mr. Haywood visited the hotel room occupied by Mr. Davenport and Mr. Baker the next day. Id. Mr. Haywood left the hotel with Mr. Baker and drove to Mr. Baker's house to pick up gasoline. Id. They then drove to a park where Mr. Baker, Mr. Davenport and Mr. King had previously left a garbage bag containing the clothes they wore during the shooting, picked up the bag, and drove to a different park where Mr. Baker burned the clothing in a wooded area. Id. Mr. Baker testified he borrowed one of Mr. Haywood's cell phones to use as a flashlight to find the wooded area. Id. During that time Mr. Haywood used one of his cell phones to text his other cell phone, “This is [Haywood] man[,]” “I'm turning the car around,” and “Noah pic up the phone boi.” Id. After dropping off Mr. Baker later that night, Mr. Haywood used one of his cell phones to search for “aiding an offender” and “Minnesota state statute of aid an offender.” Id.

b. Procedural Background

i. Pretrial Motions

1. Motion to Remove Judge Munger for Lack of Impartiality

Mr. King and Mr. Davenport had separate trials before Judge Mark A. Munger prior to Mr. Haywood's trial. Mr. King had a bench trial and Mr. Davenport had a jury trial. (See ECF No. 918 at 2.) Judge Munger made findings regarding Mr. Haywood's role in the offense in connection with both cases. In his Findings of Fact at Mr. King's trial, Judge Munger concluded the State had proved beyond a reasonable doubt that:

44. Further investigation by DPD indicated (through the surveillance videos of the Signature Inn and through cell phone records of Defendant Haywood) that Defendants Haywood and N. Baker left the Signature Inn just before 07:00pm on 02/15/17, returning just as Mr. Gunsallus was leaving for Austin. (See Exh. 85.) Time spent by Defendants Haywood and N. Baker away from the motel coincided and collaborated [sic] DPD's hypothesis that Defendants were disposing of evidence by burning it during that timeframe.

(See id.) (emphasis in the original.)

At Mr. Davenport's sentencing hearing, Judge Munger stated the following with respect to Mr. Haywood's involvement:

To my way of thinking, this case involves the tragic interplay of six key events.

The second event was, unfortunately, the introduction by Mr. Vange, who was a friend of William Grahek, to Mr. Xavier Haywood. Mr. Haywood's day in court is in the future. It's a different day in court because it's not looking exactly at participation in the murder, it's what took place after the fact, and we'll leave that for another day, but that event, the introduction, according to Mr. Vange and two trials where he testified very clearly that he was the one who had introduced Mr. Xavier Haywood to Mr. William Grahek, and, in fact, brought him into the basement, showed him where the drugs were, showed him where the safe was. They were able to see the money that was in the safe. That was the second event.

The third event was Mr. Haywood providing that information of what he learned in the basement of Mr. Grahek's residence to Mr. Davenport. There's absolutely no doubt in my mind in listening to the testimony in two trials now that the only connection between those three individuals, and there were three, Mr. Davenport was one of the three, I am utterly convinced of that, and so, I was, with respect to my court trial with Mr. King and a jury trial in Brainerd, came to the same conclusion. The only connection between Mr. Grahek and those three was Xavier Haywood.

(Id. at 2-3; ECF No. 9-19 at 2-4.)

Judge Munger also presided over Mr. Haywood's jury trial. On March 10, 2019, Mr. Haywood moved to remove Judge Munger on impartiality grounds in light of the statements Judge Munger made in the King and Davenport cases. (ECF No. 9-18.) Chief Judge Sally L. Tarnowski of the Sixth Judicial Circuit denied the motion, concluding Judge Munger's prior conduct, statements and decision to continue presiding over Mr. Haywood's case were consistent with the Minnesota Code of Judicial Conduct. (ECF No. 9-19 at 4-7.)

2. Motion for Continuance

Mr. Haywood initially retained private counsel in his defense (ECF No. 9-21 at 2-3), but his attorney missed several pretrial hearings and the State ultimately suspended the attorney's license for 120 days for reasons unrelated to Mr. Haywood's case. (Id.) As a result of the suspension, Mr. Haywood was left without representation at a September 17, 2018 hearing before Judge Munger. (Id. at 2.) At the hearing, Judge Munger explained on the record that Mr. Haywood either should talk to the private attorney his former counsel had referred or apply to be represented by a public defender. (Id. at 3.) Taking into consideration Mr. Haywood's need to retain new counsel, and the fact that Mr. Haywood's case had been pending for over a year-and-a-half at that point in time, Judge Munger set a March 18, 2019 pretrial motions hearing date and a March 19, 2019 trial date. (Id. at 3, 5.)

Mr. Haywood retained new counsel roughly three months later, in early January 2019. His new attorney filed a letter with the Court at the end of February seeking to continue the trial date due to the voluminous information he needed to review to prepare for the trial. See Haywood, 2020 WL 4743525, at *10; (ECF No. 9-23). Because Mr. Haywood had failed to retain substitute counsel for over three months after to the September 18 hearing, and the case had been pending for approximately two years, Judge Munger denied the motion for continuance. (ECF No. 9-24.)

ii. Trial and Sentencing

During Mr. Haywood's trial, the State sought to admit testimony from Noah Baker over Mr. Haywood's attorney's hearsay objections regarding certain statements Mr. Davenport allegedly had made. (Id. at 133-45.) Judge Munger excluded testimony from Mr. Baker regarding information Mr. Haywood allegedly provided to Mr. Davenport concerning the layout of the Grahek home, the location of the safe, the drugs and money in the safe, and concerns that Mr. Grahek may have had a dog. (Id. at 135, 143.) But Judge Munger admitted Mr....