UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Lincoln Lamar Caldwell,             Case No. 17-cv-1971 (SRN/TNL)        

          Petitioner,                                                    
                                   MEMORANDUM OPINION AND                
v.                                           ORDER                       

Eddie Miles,                                                             
Warden Stillwater Correctional Facility,                                 
Minnesota,                                                               

          Respondent.                                                    


Zachary A. Longsdorf, Longsdorf Law Firm, PLC, 5854 Blackshire Path, Suite 3, Inver 
Grove Heights, MN 55076, for Petitioner.                                  

Linda K. Jenny, Assistant County Attorney, Hennepin County Attorney’s Office, 300 
South Sixth Street, Suite C-2000, Minneapolis, MN 55487, for Respondent.   


SUSAN RICHARD NELSON, United States District Judge                        
I.   INTRODUCTION                                                         
    This matter is before the Court on Petitioner Lincoln Lamar Caldwell’s Objections 
[Doc. No. 17] to United States Magistrate Judge Tony N. Leung’s April 8, 2018 Report 
and Recommendation [Doc. No. 16] (“R&R”).  The magistrate judge recommended that 
Petitioner’s 

 Petition for Writ of Habeas Corpus by a Person in State 
Custody [Doc. No. 1] (“Petition”) be denied, the action be dismissed with prejudice, and a 
Certificate of Appealability be denied.  (R&R at 6.).  For the reasons set forth below, 
Petitioner’s objections are overruled, the Court adopts the R&R in its entirety, denies a 
Certificate of Appealability, and dismisses this matter with prejudice.   

II.  BACKGROUND                                                           
    The factual and procedural background of this matter is well documented in the 
R&R and is incorporated herein by reference.  This Court will recite background facts only 
to the extent necessary to rule on Petitioner’s objections.               
    A.  State Court Proceedings                                          
    In 2008, Petitioner was convicted in Hennepin County District Court on six counts of 

murder.1 (See Pet. at 1; State v. Caldwell, 

 (Minn. 2011) (“Caldwell 
I”).  Caldwell was the driver of an SUV involved in a drive-by shooting that killed Brian Cole.  
State v. Caldwell, 

 (Minn. 2014) (“Caldwell II”).  Both Caldwell and 
one of his passengers, the shooter, Kirk Harrison, were members of the LL gang, rivals of the 
One-Nine gang.  

  Although Cole was not a member of either gang, he was standing near 

members of the One-Nine gang when Harrison shot him.  

                 



1 The six charges on which the jury convicted Caldwell were:  (1) first-degree premeditated 
murder in violation of Minn.Stat. § 609.185(a)(1) (2010); (2) first-degree premeditated 
murder for the benefit of a gang in violation of Minn.Stat. § 609.185(a)(1) and 

  (2010);  (3)  first-degree  drive-by  murder  in  violation  of  Minn.Stat.  § 
609.185(a)(3) (2010); (4) first-degree drive-by murder for the benefit of a gang in violation 
of Minn.Stat. § 609.185(a)(3) and 

; (5) second-degree drive-by 
murder in violation of 

, subd. 1 (2010); and (6) second-degree drive-
by murder for the benefit of a gang in violation of 

, subd. 1(2) and 

, subds. 2, 3.   State v. Caldwell, 

 (Minn. 2011) 
(“Caldwell I”).                                                           
                               2                                         
    At Petitioner’s jury trial, the prosecution presented evidence regarding the LL gang, 
including evidence about hand signs, drug activities, and the rivalry with the One-Nine gang.  

Caldwell I, 803 N.W2d at 379–81.  A witness confirmed that a photograph of Caldwell 
showed him displaying the LL gang sign.  

.  The prosecution called numerous trial 
witnesses, some of whom were in Caldwell’s SUV at the time of the shooting, including 
Carnell Harrison2 and William Brooks, and some of whom were not present at the shooting, 
but discussed the shooting with Caldwell afterwards, including Shawntis Turnage.  

   
    Turnage testified that at a party shortly after the shooting, he encountered Caldwell, 

who recounted “g[etting] down” with the One-Nines, which Turnage understood to mean 
“fighting or shooting or [a] brawl or something.”  Caldwell II, 

.  Turnage 
also testified that Caldwell had explained that a One-Nine gang leader known as “Ill Will” 
had been the intended target of the shooting, and Caldwell had described the gun used in the 
shooting as a “grey and black Smith & Wesson” 9 mm semiautomatic pistol that Turnage 

knew Caldwell possessed.  

                                             
    Caldwell  was  represented  by  counsel  during  his  jury  trial.    Prospective  jurors 
completed a 91-question questionnaire, and during voir dire, defense counsel demonstrated 
his familiarity with the completed questionnaires by asking some particularized questions of 
the venire.  Caldwell I, 803 N.W.2d at 386–87.  Defense counsel also prepared a list of a 

number of prospective jurors whom he planned to strike, and moved to strike several jurors 
for cause, with some success.  Id. at 387.                                

2 Carnell Harrison was the brother of the shooter, Kirk Harrison.         
                               3                                         
    Also, during trial, Caldwell’s mother disrupted the proceedings on a number of 
occasions, for which she was initially temporarily barred from the courtroom, and later 

banned from the courtroom for the duration of the trial.  (See R&R at 42–47.)  Prior to 
delivering the final jury instructions, the district judge permitted members of the public an 
opportunity to leave the courtroom, but then locked the doors of the courtroom during the  
final jury instructions.  (Id. at 48.)                                    
    As noted, the jury ultimately convicted Caldwell on all six counts and the district court 
sentenced him to life in prison without the possibility of parole.  Caldwell I, 

.                                                                      
    In addition to the charges brought against Caldwell, the shooter, Kirk Harrison, was 
also prosecuted for Cole’s murder.  

.  Kirk Harrison proceeded to a bench trial in 
Hennepin County District Court, where he was convicted of unintentional murder in the 
second degree for causing death while committing the felony of drive-by murder.  

.  

The court found that the prosecution had failed to prove that Kirk Harrison had the intent to 
cause the death of another, or that the LLs met the statutory definition of a gang.  

   
    Caldwell  filed  a  direct  appeal,  which  was  later  stayed  so  that  he  could  file  a 
postconviction motion.  

  In Caldwell’s first postconviction motion, he argued, as relevant 
here, that:  (1) the doctrine of non-mutual collateral estoppel barred his conviction; (2) he 

received ineffective assistance of counsel; and (3) he was denied his Sixth Amendment right 
to a public trial.  

.  The postconviction court denied Caldwell’s petition, which 

                               4                                         
he then appealed.  

.  That appeal was also stayed so that Caldwell could file a second 
postconviction petition.  

                                             

    In Caldwell’s second postconviction petition, he argued that he was entitled to an 
evidentiary hearing on the basis of newly discovered evidence.  

  The postconviction court 
denied  Caldwell’s  second  postconviction  petition,  which  he  appealed.    The  Minnesota 
Supreme Court consolidated Caldwell’s appeals and denied relief.  

; 391.   
    Subsequently, Caldwell filed a third petition for postconviction relief, alleging that 
three witnesses had presented false testimony in his trial.  Caldwell II, 

. He 

requested an evidentiary hearing.  

  In support of his petition, Caldwell submitted a 
notarized  affidavit  from  an  investigator  who  interviewed  certain  witnesses,  including 
Turnage, and obtained statements in which they recanted their trial testimony.  

.  
After  the  postconviction  court  summarily  denied  Caldwell’s request  for an  evidentiary 
hearing, he appealed the denial of the hearing.  

 at 769–70.  The Minnesota Supreme Court 

found that the postconviction court had denied the motion prematurely and remanded the 
matter for an evidentiary hearing.  

.                           
    The postconviction court held the evidentiary hearing in June 2015.  Caldwell v. State, 

 (Minn. 2016) (“Caldwell III”).  Carnell Harrison recanted his trial 
testimony, and Brooks could not be located.   

  After Turnage was sworn as a witness, the 

court informed him of the right against self-incrimination and that the prosecution might 
consider perjury charges.  

.  Turnage indicated that he understood his rights and 
declined the offer to talk to an attorney.  

  On direct examination, Turnage testified that he 
                               5                                         
had never seen Caldwell with a gun, nor had Caldwell told him that he “got down with the 
One-Nines.”  

  at 495–99.  He explained that his testimony was different in 2008 because 

he was young at the time and had felt intimidated.  

.  On cross examination, the 
prosecutor referred to possible perjury charges against Turnage, as well as charges related to 
aiding and abetting an offender after-the-fact, and possible sentences for an aiding and 
abetting offense.  

  In light of Turnage’s apparent confusion about his Fifth Amendment 
rights, the court recessed Turnage’s testimony to allow him to seek counsel.  

.  
Thereafter, Turnage obtained counsel and the hearing resumed three months later.  

  At the 

reconvened hearing, Turnage invoked his Fifth Amendment rights and refused to answer 
further questions.  

                                                   
    The postconviction court then struck Turnage’s testimony from the earlier evidentiary 
hearing, finding that Turnage’s Fifth Amendment waiver had not been complete, knowing, 
and voluntary.  

  The postconviction court also concluded that Carnell Harrison’s new 

testimony was not credible and even if Turnage had not testified at trial, it was unlikely that 
the jury would have reached a different verdict.  

.  The postconviction court 
therefore denied Caldwell’s third motion for postconviction relief.  

  
    Caldwell appealed to the Minnesota Supreme Court, arguing that the postconviction 
court and the prosecutor had interfered with Turnage’s decision to testify at the postconviction 

hearing, thereby violating Caldwell’s Fourteenth Amendment right to due process.  

  In 
addition, he argued that the postconviction court erred by striking Turnage’s testimony, and 
the remedy for the constitutional violation was the dismissal of the indictment.  

.   
                               6                                         
    In Caldwell III, the Minnesota Supreme Court disagreed, finding no violation of 
Caldwell’s constitutional rights.  

 at 500–03.  While it acknowledged that the invocation of 

perjury charges can sometimes lead to the intimidation of a witness, it relied heavily on the 
postconviction court’s first-hand observation of the tone and nature of questioning and found 
that the prosecution had not intimidated Turnage.  

  Nor did the Minnesota Supreme find 
any error on the part of the postconviction court in striking Turnage’s earlier testimony.  

 
Accordingly, it affirmed the postconviction court’s denial of relief.     
    B. Habeas Petition                                                   

    In June 2017, Caldwell filed the instant Petition in this Court pursuant to 

.  He identifies the following bases for his claim that he is being held in violation of U.S. 
law:                                                                      
    Ground One:  Ineffective Assistance of Counsel, in violation of the Sixth 
    Amendment, based on: (1) counsel’s alleged inattentiveness or indifference 
    during jury selection; and (2) counsel’s limited interaction with Caldwell prior 
    to trial.                                                            
    Ground  Two:    Due  process  violation  resulting  from  his  conviction  of 
    committing a crime for the benefit of a gang despite insufficient evidence to 
    satisfy all the elements of that crime.  Namely, he contends that:  (1) there was 
    no evidence presented to show that he or his alleged gang existed for the 
    purpose of engaging in illegal activity nor did any evidence show a pattern of 
    crime committed by the alleged gang; (2) the principal in the crime for which 
    Caldwell was charged with aiding and abetting was acquitted of committing 
    the  crime  for  the  benefit  of  a  gang;  and  (3)  the  amount  of  gang-related 
    testimony prejudiced Caldwell’s right to a fair trial.               
    Ground Three:  Due process violation based on Caldwell’s conviction for 
    intentional and premeditated murder despite insufficient evidence to satisfy all 
    the elements of the crime.  Specifically, he contends that the prosecution failed 
    to present evidence of the principal’s premeditation or intent and the principal 
                               7                                         
    was acquitted of premeditation and intentional murder counts after a bench 
    trial.                                                               
    Ground Four:  Due process violation based on Caldwell’s conviction for 
    aiding and abetting Kirk Harrison, the principal, for a crime for which Harrison 
    had been acquitted after the prosecution had a full and fair opportunity to 
    litigate the issues of Harrison’s intent and premeditation.          
    Ground Five:  Due process violation arising from a postconviction hearing, in 
    which a witness who was in the process of giving testimony favorable to 
    Petitioner, asserted his right against self-incrimination after being threatened 
    with perjury charges and a sentence of up to “half a life sentence” for “aiding 
    an  offender,  accomplice  after  the  fact”  during  the  prosecution’s  cross 
    examination.                                                         
    Ground Six:  Denial of Sixth Amendment right to a public trial based on the 
    exclusion of Caldwell’s mother from the courtroom during trial, and later the 
    entire floor of the courthouse in which the courtroom was located, and the 
    locking of the courtroom doors during jury instructions.             

(Pet. at 4–14.)                                                           
    In  the  April  2018  R&R,  Magistrate  Judge  Leung  recommended  the  denial  of 
Caldwell’s Petition, rejecting each basis for relief.                     
    As  to  Ground  One,  Caldwell’s  claim  of  ineffective  assistance  of  counsel,  the 
magistrate judge agreed with the Minnesota Supreme Court’s determination that Caldwell 
failed to rebut the presumption that his trial counsel’s voir dire performance was reasonable.  
(R&R at 19–20) (citing Caldwell I, 803 N.W.2d at 386–87).  Likewise, the magistrate judge 
found that the Minnesota Supreme Court was not objectively unreasonable in finding that 
Caldwell had failed to demonstrate prejudice resulting from trial counsel’s allegedly deficient 
performance during voir dire.  (Id. at 23.)                               
                               8                                         
    Regarding the attorney-client relationship, Magistrate Judge Leung also agreed with 
the Minnesota Supreme Court that the number of attorney client consultations alone was not 

determinative of the adequacy of representation and that Caldwell’s trial counsel had advised 
him competently.  (R&R at 23–24) (citing Caldwell I, 803 N.W.2d at 387–88.)  Also, even 
assuming that the Minnesota Supreme Court unreasonably assessed counsel’s performance, 
the magistrate judge found that Caldwell failed to show that he was prejudiced.  (Id. at 25–
26.)                                                                      
    Finding that the Minnesota Supreme Court’s determination of Petitioner’s ineffective 

assistance claim was neither contrary to clearly established law nor objectively unreasonable, 
the magistrate judge recommended that Caldwell be denied relief on Ground One of his 
Petition.  (Id. at 26.)                                                   
    Regarding Grounds Two and Three, Magistrate Judge Leung first addressed the 
sufficiency of the gang-related evidence.  He found no evidentiary deficiencies, noting the 

findings of the Minnesota Supreme Court concerning a number of trial witnesses who 
testified about the following:  (1) their membership in the LL gang; (2) the LL gang hand 
signal; (3) the rivalry between the LLs and the One-Nines; (4) that LLs sell drugs, including 
crack cocaine and marijuana; and (5) that LLs engage in shoot-outs with other gangs that 
encroach upon their territory, including the One-Nines.  (Id. at 29) (citing Caldwell I, 803 

N.W.2d at 380–81).  In addition, the magistrate judge noted that witness Cey Barber had 
testified that he was with Caldwell on the afternoon of the shooting, saw Ill Will in the 
group of One-Nines, heard some shots, put his head down, then heard Kirk Harrison fire 
                               9                                         
more shots.  (Id.)  (citing Caldwell I, 803 N.W.2d at 380–81.)  In light of this evidence, 
Magistrate Judge Leung found that the Minnesota Supreme Court had properly concluded, 

consistent with 

, subd. 9, that there was sufficient evidence from which 
a jury could infer that the LLs had, as a primary activity, the commission of one or more 
enumerated criminal offenses, and were engaged in a pattern of criminal activity.  (Id. at 
30–31) (citing Caldwell I, 803 N.W.2d at 385–86).  Finding that the Minnesota Supreme 
Court’s determination regarding the status of LL as a gang and its gang-related activities 
was not unreasonable, the magistrate judge recommended the denial of relief sought in 

Ground Two of Caldwell’s Petition. (Id. at 33.)                           
    As  to  the  sufficiency  of  the  evidence  concerning  intent  and  premeditation, 
Magistrate Judge Leung focused on the sufficiency of the evidence at Caldwell’s trial, not 
Kirk Harrison’s bench trial.  (Id. at 33.)   The magistrate judge noted that several trial 
witnesses had testified about the rivalry between the LLs and One-Nines and the events 

that occurred on the day of the shooting, including the shooting itself.  (Id. at 34–35) (citing 
Caldwell I, 803 N.W.2d at 379–80).  He agreed with the reasoning of the Minnesota 
Supreme Court that there was sufficient evidence from which a jury could infer that Kirk 
Harrison had a rivalry with Ill Will, that Harrison had tried to shoot him earlier in the day, 
and that Harrison believed he was shooting at Ill Will when he fired into the group of 

people that included Cole and Ill Will.  (Id. at 37) (citing Caldwell I, 

.)   
    As further evidence of intent and premeditation to convict Caldwell of aiding and 
abetting first degree intentional murder, Magistrate Judge Leung noted comments made by 
                              10                                         
Caldwell and Kirk Harrison on the day of the shooting that they intended to retaliate against 
the One-Nines and Kirk Harrison’s actions in initially attempting to shoot at the One-Nines.  

(Id.at 39–41.)  After Harrison’s initial efforts to shoot failed, he realized that the gun’s 
safety was on, and then removed the safety, firing into the crowd of One-Nines six or seven 
times.  (Id.)  While Caldwell argues that the sole testimony concerning intent came from 
Turnage, Magistrate Judge Leung disagreed, noting all of this evidence.  Thus, even 
without Turnage’s testimony that Ill Will had been the target, the magistrate judge properly 
concluded that the Minnesota Supreme Court’s finding was not unreasonable that a jury 

could  have  inferred  that  Harrison  acted  with  intent  to  kill  and  that  the  killing  was 
premeditated.  (Id. at 41.)  Accordingly, the magistrate judge recommended the denial of 
Ground Three of  Caldwell’s Petition.  (Id. at 42.)                       
    In Ground Four of Caldwell’s Petition, he asserts “that his due process rights were 
violated when he was convicted of aiding and abetting Kirk . . . of a crime for which Kirk 

. . . had been acquitted after the prosecution had a full and fair opportunity to litigate the 
issues of [Kirk]’s intent and premeditation.”  (Pet. at 10–11.)  Magistrate Judge Leung 
found that while Caldwell had presented the issue of statutory interpretation of 

 to the Minnesota Supreme Court (concerning liability for the crimes of another), 
the issues of non-mutual collateral estoppel and fundamental fairness were ultimately not 

fairly presented in his consolidated appeal.  (R&R at 12.)  In addition, the magistrate judge 
found that any fundamental fairness claim was now procedurally defaulted, rather than 
merely unexhausted, (id. at 14) (citing State v. Knaffla, 

 (Minn. 1976), 
                              11                                         
and that the Petition is not a “mixed petition,” containing a claim for which there is an 
available state court remedy.  (Id. at 14–15.)  For all of these reasons, Magistrate Leung 

recommended the denial of relief on Count Four.  (Id. at 15.)             
    Regarding Count Five, Caldwell’s due process claim concerning the testimony of 
postconviction witness Turnage, the magistrate judge rejected Caldwell’s argument that 
the  government  had  interfered  with  the  defense  witness  in  violation  of  the  Sixth 
Amendment.  (R&R at 59–60.)  The magistrate judge found that the Minnesota Supreme 
Court’s determination of no interference by the prosecutor was neither contrary to clearly 

established federal law nor unreasonable.  (Id. at 62–63) (citing Caldwell III, 

).   Accordingly, he recommended that Caldwell be denied relief as to this claim.  
    Finally, with respect to Ground Six of Caldwell’s Petition, Magistrate Judge Leung 
found that Caldwell’s right to a public trial was not denied when his mother was excluded 
from the courtroom and the trial judge locked the courtroom doors during jury instructions.  

(Id. at 42–52.)  He noted that although the Sixth Amendment guarantees the right to a 
public trial in all criminal prosecutions, that right must give way in some situations to other 
rights or interests.  (Id. at 49.)  But most fatal to Caldwell’s claim, the magistrate judge 
found,  was  that  not  all  spectators  were  excluded  from  the  courtroom.    (Id.  at  50.)    
Accordingly, he recommended that this claim for relief be denied.         

III.   DISCUSSION                                                         
    The district court reviews de novo those portions of the R & R to which a specific 
objection is made and “may accept, reject, or modify, in whole or in part, the findings or 
                              12                                         
recommendations made by the magistrate judge.”  

(b)(1); accord D. Minn. 
L.R. 72.2(b).  Here, Petitioner objects to all of the magistrate judge’s findings, reasserting 

the arguments that he presented to Magistrate Judge Leung.                
    A.  Procedural Bar for Claim Concerning Acquittal of Principal       
    As noted, the magistrate judge recommended the denial, on procedural grounds, of 
Caldwell’s due process claim that a defendant who has been charged as an accomplice cannot 
be convicted of a crime when the principal has been acquitted of the same crime.  (R&R at 
12–15.)  In his Objections, Caldwell argues that simply characterizing an issue as one 
involving due process is sufficient to give state courts the opportunity to decide the federal 

constitutional issue.  (Objs. at 11.)                                     
    “28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with 
a  ‘fair  opportunity’ to  apply  controlling  legal  principles  to  the facts  bearing upon  his 
constitutional claim.”  Anderson v. Harless, 

 (1982) (citing Picard v. Connor, 

 (1971)).  Thus, a habeas petitioner must have “fairly presented” the “substance” 

of his federal habeas corpus claim to the state courts, prior to seeking habeas relief.  

   
    As the magistrate judge observed, in Caldwell I, the Minnesota Supreme Court 
addressed the question of whether a defendant charged as an accomplice can be convicted of 
a crime for which the principal has been acquitted.  (Id. at 10.)  Having reviewed the appellate 
record, Magistrate Judge Leung noted that the argument was two-pronged, with the first prong 

grounded in statutory  interpretation of 

, and the second based on 

                              13                                         
Standefer v. United States, 

 (1980), and the doctrine of non-mutual collateral 
estoppel.  (R&R at 10–11) (citing Resp’t’s App. at 75, 76–80 [Doc. No. 12]).   

    Because Caldwell’s counsel clarified at oral argument before the Minnesota Supreme 
Court that his argument was limited to the interpretation of 

, subd. 4, the 
Minnesota Supreme Court confined its analysis in Caldwell I to that issue.  

 n.3.  While Caldwell now acknowledges that counsel may have waived the non-mutual 
estoppel argument before the state court, he asserts that nothing indicates the waiver of a 
fundamental fairness argument present in the instant claim.  (R&R at 13) (citing Pet’r’s Resp. 

at 23–24 [Doc. No. 15]).  Alternatively, he asks this Court to deem any unexhausted claims 
deleted from this Petition, so as to permit the consideration of all of his exhausted claims, or 
that he be granted leave to amend his Petition in order to proceed with his exhausted claims.  
(Id.) (citing Pet’r’s Resp. at 24.)                                       
    The Court agrees with Magistrate Judge Leung that the issue of fundamental fairness 

was “part and parcel” of the issue of non-mutual collateral estoppel, and not a separate federal 
claim.  (Id.)  As the magistrate judge observed, in order to “fairly present” a constitutional 
claim,  a  petitioner  must  refer  to  a  “specific  federal  constitutional  right,  a  particular 
constitutional provision, a federal constitutional case, or a state case raising a pertinent federal 
constitutional issue.”  (Id.) (citing Nash, 

 (8th Cir. 2015)).  But because 

Caldwell’s counsel waived the issue of non-mutual collateral estoppel, the fundamental 
fairness claim was not fairly presented to the Minnesota Supreme Court.  Accordingly, the 

                              14                                         
Minnesota Supreme Court lacked a fair opportunity to apply the law to the facts relevant to 
this constitutional claim.                                                

    As noted in the R&R, a claim is unexhausted if state law allows the petitioner to raise 
the claim by any available state court procedure.  See 

(c).  However, where 
a claim has not been fairly presented and a state procedural rule precludes further litigation of 
the claim, the claim is procedurally defaulted.  Coleman v. Thompson, 

 
(1991).  In Minnesota, the state procedural rule enunciated in Knaffla, 

, 
holds that “where direct appeal has once been taken, all matters raised therein, and all claims 

known but not raised, will not be considered upon a subsequent petition for postconviction 
relief.”   This procedural rule therefore denies further litigation of claims that could have been 
raised on direct appeal, Murphy v. King, 

, 849–50 (8th Cir. 2011), barring not 
only claims that were known at the time of direct appeal, but also claims that should have 
been known.  Sontoya v. State, 

 (Minn. 2013).  The Court agrees with 

Magistrate Judge Leung that because Caldwell raised a fundamental fairness argument as part 
of his consolidated direct appeal, but subsequently waived it at oral argument, Knaffla bars 
him for pursuing this argument in a subsequent petition for postconviction relief.  The claim 
is therefore procedurally defaulted.                                      
    As the magistrate judge observed, while procedurally defaulted claims are generally 

barred from federal habeas review, Coleman, 

, they may be considered on the 
merits only when one of two exceptions applies:  (1) the petitioner can demonstrate cause for 
the default and actual prejudice as a result of the alleged violation of federal law; and (2) 
                              15                                         
where the petitioner can demonstrate that the failure to consider the claim will result in a 
fundamental miscarriage of justice.  

  If neither exception applies, the federal court will not 

entertain the merits of the otherwise procedurally defaulted claim.  These exceptions do not 
apply here, and, as Magistrate Judge Leung notes, Caldwell proposes dropping this claim 
entirely so that the other claims in his Petition may be considered.  Because the magistrate 
judge considered the merits of Caldwell’s other claims, he appears to have granted this 
alternative request to examine Caldwell’s exhausted, non-defaulted claims.  This Court agrees 
with that approach and proceeds to analyze Caldwell’s other grounds for relief.3    

    B.  Right to Present a Complete Defense                              
    Caldwell first objects to the magistrate judge’s analysis and recommendation as to his 
due process claim arising from the government’s questioning of Turnage at the postconviction 
evidentiary hearing.  (Objs. at 1–6.)  Caldwell contends that Turner’s invocation of the Fifth 
Amendment and subsequent refusal to testify resulted from the prosecution’s threats and 
intimidation.  (Pet. at 12.)   In his Objections, Caldwell asserts that the magistrate judge drew 

artificial distinctions between the facts here and those present in Webb v. Texas, 

, 
97–98 (1972), a case in which the comments made by the prosecution to a witness were found 
to be violative of due process.  He also argues that the Minnesota Supreme Court and 
Magistrate Judge Leung erred by presuming that “there was some legitimate reason for 


3 The Court also agrees with the magistrate judge that Caldwell’s Petition is not a mixed 
petition, containing both exhausted and unexhausted claims, and which would require 
dismissal without prejudice.  (R&R at 15.)  “The presence of a procedurally defaulted claim 
. . . does not create a mixed petition.”  Maxwell v. Gau, No. 12-cv-1770 (ADM/TNL), 

, at *9 n.3 (D. Minn. Apr. 8, 2014).                            
                              16                                         
Turnage to be threatened the way he was.”  (Objs. at 5.)  He asserts that, as a practical matter, 
Turnage  could  not  have  been  prosecuted  for  perjury  due  to  the  applicable  statute  of 

limitations.  (Id.)                                                       
    The Court disagrees with Caldwell’s arguments.  As the magistrate judge observed, 
“[i]t is not improper per se for a prosecuting attorney to advise prospective witnesses of the 
penalties for testifying falsely.  But warnings concerning the dangers of perjury cannot be 
emphasized to the point where they threaten and intimidate the witness into refusing to 
testify.”  United States v. Risken, 

 (8th Cir. 1986) (quotation omitted).       

    In Caldwell III, the Minnesota Supreme Court considered whether the prosecution had 
interfered  with  Caldwell’s  right  to  present  a  complete  defense  under  the  Fourteenth 
Amendment,  assuming  without  deciding  that  the  right  also  applied  to  postconviction 
proceedings.  886 N.W.2d at 500–01.  Here, the magistrate judge noted that in Webb, 

, the trial judge had made threatening remarks to a single witness for the defense in 

the context of trial.  (R&R at 60.)  He noted a lack of Supreme Court precedent addressing a 
due process claim based on government interference with a defense witness in the context of 
a postconviction proceeding.  (Id.)  Magistrate Judge Leung also cited authority for the 
proposition that the “right to due process [in postconviction context] is not parallel to a trial 
right, but rather must be analyzed in light of the fact that [the individual] has already been 

found guilty at a fair trial, and has only a limited interest in postconviction relief.”  (Id. at 61) 
(quoting Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 

 (2009)).  
The Court agrees that because there is no U.S. Supreme Court authority confronting the 
                              17                                         
specific question, the state court’s decision cannot be considered contrary to any decisions of 
the U.S. Supreme Court.  Woods v. Donald, 

 (2015).   

    This  Court  also  agrees  with  the  magistrate  judge’s  substantive  finding  that  the 
Minnesota Supreme Court’s ruling on this claim was not unreasonable.  (R&R at 61–62.)  As 
Magistrate Judge Leung noted, the state court’s factual determinations are presumed correct, 
unless clear and convincing evidence shows that the findings lack support in the record.  (Id. 
at 61) (citing Whitehead v. Dormire, 

 (8th Cir. 2003)).   Indeed, the 
Minnesota Supreme Court found the questions that the prosecutor posed to Turnage at the 

postconviction hearing were “inartful.”  Caldwell III, 

.  However, the court 
relied on the postconviction court’s first-hand observation of the exchange, finding that the 
postconviction court was in the best position to evaluate whether Turnage was in fact 
intimidated, “having heard the tone of the questioning.”  

 The postconviction court found 
that the prosecutor had not attempted to intimidate Turnage, but instead had simply vigorously 

cross-examined him.  

  This conclusion finds support in the record.  This Court thus agrees 
with the magistrate judge that Caldwell has not shown by clear and convincing evidence that 
the Minnesota Supreme Court’s determination lacked support in the record, rendering it 
unreasonable.  Accordingly, Caldwell is not entitled to habeas relief on this basis. 
    C.  Sufficiency of the Evidence                                      

    Caldwell also objects to the magistrate judge’s findings and recommendations with 
respect to his due process claims concerning the sufficiency of the evidence, asserted in 
Grounds Two and Three of his Petition.  (Objs. at 6–7.)                   
                              18                                         
    The magistrate judge applied the proper standard of review to these claims.  (R&R at 
27.)  As he noted, the Constitution requires proof beyond a reasonable doubt in order to 

convict a person of a crime.  Jackson v. Virginia, 

 (1979).  A habeas 
petitioner is entitled to relief if, upon a review of the record evidence at trial, no rational trier 
of fact would have found proof of guilt beyond a reasonable doubt.  Nash, 

. 
“[A] state-court decision rejecting a sufficiency challenge may not be overturned on federal 
habeas unless the ‘decision was objectively unreasonable.’”  Parker v. Matthews, 

 (2012) (per curiam) (quoting Cavazos v. Smith, 

 (2011) (per curiam)).    

         1.   Crime Committed for the Benefit of a Gang                  
    As to the evidence regarding whether Cole’s killing was committed for the benefit of 
a gang, Caldwell acknowledges that some witnesses testified that the LLs sold drugs and that 
the LLs and One-Nines were known enemies.  (Objs. at 7.)  However, he asserts that “[t]here 
was nothing to give any indication from that testimony that these things were one of the 

primary activities of the gang.”  (Id.)                                   
    The Court agrees with the magistrate judge’s analysis of the law and the facts.  (R&R 
at 27–33.)  As noted, in Caldwell I, 

, the Minnesota Supreme Court found 
that the evidence at Caldwell’s trial established that the LLs met the statutory definition of a 
gang in 

, subd. 1.   Namely, the court found that:  (1) Caldwell did not 

dispute that the LL gang is a group of three or more people, with a common identifying sign 
or symbol, which was supported by the testimony of several witnesses; (2) that witness 
testimony was sufficient for the jury to find that the LL gang had, as one of its primary 
                              19                                         
activities, the commission, or attempted commission, of one or more enumerated offenses in 

, subd. 9, including drive-by shooting and certain drug offenses; and (3) 

witness testimony concerning drug sales and a pattern of shooting rival gangs was sufficient 
for the jury to infer that LL gang members had engaged in a pattern of criminal activity.  

.  Thus, the Minnesota Supreme Court found that there was sufficient evidence to 
support Caldwell’s conviction for aiding and abetting first-degree murder for the benefit of a 
gang.  

                                                                
    The  Minnesota  Supreme  Court’s  determination  was  not  unreasonable,  as  the 

magistrate judge properly found.  Again, several witnesses testified that the LLs sold drugs 
and shot at rival gang members.  Juries have broad discretion in drawing inferences from the 
evidence presented at trial, as long as they “draw reasonable inferences from basic facts to 
ultimate  facts.”    Coleman,  566  U.S.  at  655  (citation  omitted).    It  was  certainly  not 
unreasonable for the Minnesota Supreme Court to find that a jury could infer from the 

evidence presented at trial that the LLS had, as a primary activity, the commission of one or 
more of the offenses listed in 

, subd. 9, and that they engaged in a pattern 
of criminal activity.  See Cavazos, 

 (“[E]vidence is sufficient to support a 
conviction so long as ‘after viewing the evidence in the light most favorable to the prosecution 
any rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.’”) (quoting Jackson, 

).  In sum, the Court finds that it was 
not  unreasonable  for  the  Minnesota  Supreme  Court  to  find  that  the  evidence  was 

                              20                                         
constitutionally sufficient to support Caldwell’s conviction for aiding and abetting a crime for 
the benefit of a gang.  Accordingly, Caldwell is not entitled to relief on this basis.  

         2.   Premeditation and Intent                                   
    With respect to the sufficiency of the evidence concerning premeditation and intent, 
Caldwell asserts that only one witness, Turnage, testified that Caldwell had bragged about the 
crime after the fact, and stated that Ill Will was the intended target.  (Objs. at 8.)  But he asserts 
that Turnage later recanted that testimony, only to be “threatened into silence” by the 
prosecution.  (Id.)  He also argues that Cey Barber testified to initially hearing a first shot 

from elsewhere, before Kirk Harrison started shooting.  (Id.)  Thus, Caldwell contends, there 
was not sufficient evidence from which a reasonable jury could have found the elements of 
premeditation and intent.  (Id.)                                          
    The Court disagrees.  As noted in Caldwell I, “[i]ntent means that the defendant ‘either 
has the purpose to do the thing or cause the result specified or believes that the act, if 

successful, will cause that result,’” 

 (quoting 

, subd. 
9(4)), and “[p]remeditation means ‘to consider, plan or prepare for, or determine to commit 
the act referred to prior to its commission.’”  

  (quoting 

).  The 
Minnesota Supreme Court found that there was sufficient evidence at trial from which the 
jury  could  infer  that  Kirk  Harrison  acted  with  intent  to  kill  and  that  the  killing  was 

premeditated.  

                                                        
    Caldwell argues that the only testimony related to intent to cause the death of a specific 
person, Ill Will, came from Turnage, who later attempted to recant his testimony.  (Objs. at 
                              21                                         
8.)  But Turnage did not provide the only testimony establishing intent.  As the magistrate 
judge noted, there was evidence of the gang rivalry between the  LLs and One-Nines, 

including a previous incident in which the One-Nines had shot at Caldwell and Kirk.  (R&R 
at 40) (citing Caldwell I, 803 N.W.2d at 379–81).  Moreover, there was testimony regarding 
the particular rivalry between Kirk Harrison and Ill Will.  (Id. at 41.)  Carnell Harrison and 
Brooks testified regarding several comments made by Caldwell and Kirk Harrison on the day 
of the shooting that they intended to retaliate against the One-Nines, including a comment 
made by Kirk Harrison to Caldwell shortly before the shooting that Caldwell should have 

taken a shot at the One-Nines earlier.  (Id. at 40)  There was evidence that Kirk believed he 
was shooting at Ill Will when he fired into the group of One-Nines.  (Id. at 41.)   Furthermore, 
Harrison took the time to remove the gun’s safety after he initially failed to shoot at the One-
Nines, and proceeded to fire the gun at the group multiple times.  (Id.)   The Court therefore 
agrees with the magistrate judge that even without Turnage’s testimony that Ill Will had been 

the intended target, the Minnesota Supreme Court’s finding was not unreasonable that 
sufficient evidence supported the jury’s inference that Kirk Harrison acted with intent to kill 
and the killing was premeditated.  In fact, the court’s reasoning in Caldwell I was thorough 
and well supported by the evidence.  Accordingly, this basis of relief fails.   
    D.  Right to Public Trial                                            

    As to Caldwell’s Sixth Amendment claim concerning the closure of the courtroom 
during his trial, he takes issue with the magistrate judge’s analysis that because the courtroom 
was only partially closed, there was no violation.  (Objs. at 8.)  Caldwell contends that neither 
                              22                                         
Waller v. Georgia, 

 (1984), nor Presley v. Georgia, 

 (2010), contain 
language limiting the applicability of a defendant’s right to a public trial based on whether 

the courtroom is partially closed.  (Objs. at 9 )  He also contests the determination of the 
Minnesota Supreme Court in Caldwell I, in which it concluded that there was no closure.  (Id.)   
    While the Sixth Amendment provides that the accused shall have a public trial in all 
criminal prosecutions, the Supreme Court has held that this right must give way in certain 
instances to other rights, including the defendant’s right to a fair trial.  Waller, 

; 
accord Presley, 

.  The R&R fully recounts the pattern of Caldwell’s mother’s 

outbursts during trial, which ultimately prompted the court to exclude her from the courtroom 
and to lock the courtroom door during jury instructions.  (R&R at 42–48.)  The trial court 
judge expressed his concerns regarding the effect of Caldwell’s mother’s visible and audible 
reactions to court proceedings on her son’s right to a fair trial.  (Id. at 43–44) (quoting portion 
of trial transcript in which court admonished Caldwell’s mother and warned her that her 

conduct could hurt her son’s case).                                       
    Caldwell argues that neither Waller nor Presley address Sixth Amendment rights in 
the context of a partially closed courtroom.  (Objs. at 9.)  Certainly, the magistrate judge 
acknowledged that those cases involved complete closures of the courtroom to all spectators,  
(R&R at 50) (citing Waller, 

; Presley, 

), but he also observed 

that several circuit courts of appeal have rejected habeas claims based on partial closures, 
distinguishing them from Waller.  (Id. at 51) (citing Enriquez v. Sec’y, 

, 
654–56 (11th Cir. 2016) (per curiam); Drummond v. Houk, 

, 402–04 (6th Cir. 
                              23                                         
2015); Angiano v. Scribner, 

 (9th Cir. 2010); Garcia v. Bertsch, 

 (8th Cir. 2006)).  Magistrate Judge Leung further noted that absent Supreme 

Court authority that confronts the specific issue in question, the state court’s decision cannot 
be considered “contrary to” Supreme Court authority.  (Id.) (citing Woods, 

).   
Accordingly, because the Minnesota Supreme Court did not reach a conclusion contrary to 
the U.S. Supreme Court, nor decide Caldwell’s case differently than the Supreme Court on a 
set of materially indistinguishable facts, the magistrate judge properly found no violation of 
Caldwell’s right to a public trial.  (Id. at 52.)                         

    This Court therefore finds no Sixth Amendment violation based on the exclusion of 
Caldwell’s mother from the courtroom after she repeatedly disrupted the proceedings.  At no 
point during Caldwell’s trial were all spectators excluded, even when the courtroom doors 
were locked.  Caldwell is not entitled to habeas relief on this basis.    
    E.  Ineffective Assistance of Counsel                                

    With respect to Caldwell’s claim of ineffective assistance of counsel in Ground One 
of his Petition, he objects to the magistrate judge’s conclusions, which, in turn, relied upon 
the conclusions of the Minnesota Supreme Court.  (Objs. at 10.)           
    In order to obtain relief for ineffective assistance of counsel, Petitioner must establish 
both that his counsel’s performance “fell below an objective standard of reasonableness” and 

that the deficient performance prejudiced his defense.  Strickland v. Washington, 

 (1984).  Caldwell bears the burden of establishing to a reasonable probability that, 
but  for  his  counsel’s  alleged  errors,  the  result  of  the  proceeding  would  have  been 
                              24                                         
different.  

  This is a “heavy burden,” United States v. Apfel, 

 (8th Cir. 
1996), requiring a showing that the deficiency in counsel’s performance was “so serious that 

counsel  was  not  functioning  as  the  ‘counsel’  guaranteed  the  defendant  by  the  Sixth 
Amendment.”  Strickland, 

. A defendant must show that counsel's errors were 
not the result of “reasonable professional judgment.”  

. Moreover, a court’s review 
of counsel’s performance is highly deferential, and there is a strong presumption of adequate 
assistance.  

 A defendant must then show that the deficient performance actually prejudiced 
the outcome of the proceedings.  

.                              

           1. Voir Dire Performance                                      
    Caldwell argues that his trial counsel perfunctorily “passed six jurors for cause” and 
used peremptory strikes on eight jurors without asking a single question of any of these jurors.  
(Objs. at 10.)  He contends that this “effectively defeated the main purposes of jury selection,” 
which he identifies as “(1) establish[ing] rapport with the jury; (2) learn[ing] about jurors’ 

beliefs and attitudes to make intelligent use of challenges; and (3) familiariz[ing] the jury with 
applicable legal and factual concepts.”  (Id.) (citing Thomas Mauet, Trial Techniques 42 
(Aspen 2007)).                                                            
    The magistrate judge found that Caldwell failed to meet the performance and prejudice 
prongs necessary to establish a claim of ineffective assistance.  (R&R at 19.)  As Magistrate 

Judge Leung noted, Caldwell presented arguments that asked this Court to conduct a de novo 
review of trial counsel’s performance, which is improper in the habeas context.  (Id. at 20) 
(citing Williams v. Roper, 

 (8th Cir. 2012)).  Rather, the proper question is 
                              25                                         
whether the Minnesota Supreme Court’s decision on this issue in Caldwell I was “contrary 
to, or an unreasonable application of, clearly established federal law.”  Williams, 

.                                                                      
    This Court agrees with the magistrate judge’s analysis that Caldwell has not argued, 
much less shown, that the Minnesota Supreme Court’s conclusion met the standard necessary 
for relief.  As the court found in Caldwell I, his trial counsel appears to have been well 
prepared during voir dire, as his questions demonstrated his familiarity with the answers on 
the jurors’ questionnaires and he asserted his right to strike jurors for cause on several 

occasions.  803 N.W.2d at 386–87.  Likewise, the magistrate judge properly found that even 
if the Minnesota Supreme Court had unreasonably applied the performance prong of the 
Strickland analysis, Caldwell failed to demonstrate that its application of the prejudice prong 
was unreasonable.  (R&R at 21.)  As the Minnesota Supreme Court noted, Caldwell failed to 
assert or demonstrate that any particular juror should have been stricken.  Caldwell I, 

.  Thus, this Court also agrees with the magistrate judge that it was not 
objectively unreasonable for the Minnesota Supreme Court to find that Caldwell had failed to 
show prejudice resulting from trial counsel’s performance during voir dire.  Strickland, 

.  Accordingly, because Caldwell has not met the heavy burden of demonstrating 
deficient performance and resulting prejudice, this basis for relief fails.   

           2. Attorney-Client Relationship                               
    As to the portion of Caldwell’s ineffective assistance claim based on the attorney-
client relationship, he argues that he was denied effective assistance because trial counsel met 
                              26                                         
with him only three times before trial.  (R&R at 23.)  Caldwell distinguishes the facts of his 
case from Morris v. Slappy, 

 (1983), which Magistrate Judge Leung cited in the 

R&R.  (Objs. at 10.)  He asserts that trial counsel in Slappy had the benefit of investigative 
work done by prior defense counsel, which was not the case here.  (Id.)   Caldwell also argues 
that he “was only allowed to see the evidence against him when in the presence of his attorney, 
meaning that except for the very rare instances he met with counsel, he was not able to view 
the evidence against him before trial.”  (Id.)  He contends that the magistrate judge’s 
recommendation to deny relief on this basis constitutes an improper application of clearly 

established federal law.  (Id. at 11.)                                    
    The  Court  disagrees.    In  Slappy,  the  U.S.  Supreme  Court  held  that  the  Sixth 
Amendment does not guarantee a “meaningful relationship” between a defendant and his 
counsel.  

.  Nor does “every restriction on counsel’s time or opportunity to 
investigate or to consult with his client or otherwise prepare for trial violate[ ] a defendant’s 

Sixth Amendment right to counsel.”  

  In Slappy, the Supreme Court found no constitutional 
violation and concluded that substitute counsel, who undertook representation only six days 
before trial, was well-prepared.  

 at 12–13.  In particular, the court noted counsel’s prompt 
review of the investigation, his review of materials prepared for trial by prior defense counsel, 
his conferences with the defendant, and his statements to the court that he was ready for trial.  

                                                                       
    Here, the Minnesota Supreme Court properly examined counsel’s performance and 
found  that  counsel  had  advised  Caldwell  competently,  having  reviewed  with  him  the 
                              27                                         
witnesses who were to testify for the defense and Caldwell’s desire to reject a plea offer, to 
have a speedy trial, and to testify on his own behalf.  Caldwell I, 

.  Having 

reviewed the full trial record, the court concluded that trial counsel was well prepared and 
conducted a competent defense, including the cross examination of witnesses who presented 
an alternative theory of the case.  

  Furthermore,  defense counsel had also hired an 
investigator who met with Caldwell a few times prior to trial, and Caldwell himself informed 
the district court that he did not wish to retain new counsel.  

  In sum, the facts here fully 
support the findings of the magistrate judge and the Minnesota Supreme Court that there was 

no Sixth Amendment violation based on any deficiencies in the attorney-client relationship.   
    But even if the facts demonstrated otherwise, the Court agrees with the magistrate 
judge that Caldwell has not demonstrated that his counsel’s performance actually prejudiced 
his case.  Strickland, 

.   Accordingly, this ground of relief fails.   
    F.  Certificate of Appealability                                     

    A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition 
unless he is granted a Certificate of Appealability.  See 

(c)(1); Fed. R. 
App. P. 22(b)(1).  A Certificate of Appealability cannot be granted unless the petitioner 
“has made a substantial showing of the denial of a constitutional right.”  

(c)(2).  Such a “showing” requires that he demonstrate “that reasonable jurists would 

find the district court’s assessment of the constitutional claims debatable or wrong.”  Slack 
v. McDaniel, 

 (2000).  Here, Caldwell has not made such a showing, and 
thus is not entitled to a Certificate of Appealability.                   
                              28                                         
IV.  CONCLUSION                                                           
    Based on the foregoing, and all the files, records and proceedings herein, IT IS 

HEREBY ORDERED THAT:                                                      
    1.   Caldwell’s Petition for Writ of Habeas Corpus by a Person in State Custody 
         Pursuant to 

 [Doc. No. 1] is DENIED;            

    2.   The Court ADOPTS the Magistrate Judge’s Report and Recommendation 
         [Doc. No. 16] in its entirety;                                  

    3.   Caldwell’s Objections [Doc. No. 17] to the Report and Recommendation are 
         OVERRULED;                                                      

    4.   A Certificate of Appealability is NOT GRANTED; and              

    5.   This action is DISMISSED WITH PREJUDICE.                        

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Dated:  February 5, 2019       s/Susan Richard Nelson                     
                             SUSAN RICHARD NELSON                        
                             United States District Judge                



                              29                                         

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Lincoln Lamar Caldwell,             Case No. 17-cv-1971 (SRN/TNL)        

          Petitioner,                                                    
                                   MEMORANDUM OPINION AND                
v.                                           ORDER                       

Eddie Miles,                                                             
Warden Stillwater Correctional Facility,                                 
Minnesota,                                                               

          Respondent.                                                    


Zachary A. Longsdorf, Longsdorf Law Firm, PLC, 5854 Blackshire Path, Suite 3, Inver 
Grove Heights, MN 55076, for Petitioner.                                  

Linda K. Jenny, Assistant County Attorney, Hennepin County Attorney’s Office, 300 
South Sixth Street, Suite C-2000, Minneapolis, MN 55487, for Respondent.   


SUSAN RICHARD NELSON, United States District Judge                        
I.   INTRODUCTION                                                         
    This matter is before the Court on Petitioner Lincoln Lamar Caldwell’s Objections 
[Doc. No. 17] to United States Magistrate Judge Tony N. Leung’s April 8, 2018 Report 
and Recommendation [Doc. No. 16] (“R&R”).  The magistrate judge recommended that 
Petitioner’s 

 Petition for Writ of Habeas Corpus by a Person in State 
Custody [Doc. No. 1] (“Petition”) be denied, the action be dismissed with prejudice, and a 
Certificate of Appealability be denied.  (R&R at 6.).  For the reasons set forth below, 
Petitioner’s objections are overruled, the Court adopts the R&R in its entirety, denies a 
Certificate of Appealability, and dismisses this matter with prejudice.   

II.  BACKGROUND                                                           
    The factual and procedural background of this matter is well documented in the 
R&R and is incorporated herein by reference.  This Court will recite background facts only 
to the extent necessary to rule on Petitioner’s objections.               
    A.  State Court Proceedings                                          
    In 2008, Petitioner was convicted in Hennepin County District Court on six counts of 

murder.1 (See Pet. at 1; State v. Caldwell, 

 (Minn. 2011) (“Caldwell 
I”).  Caldwell was the driver of an SUV involved in a drive-by shooting that killed Brian Cole.  
State v. Caldwell, 

 (Minn. 2014) (“Caldwell II”).  Both Caldwell and 
one of his passengers, the shooter, Kirk Harrison, were members of the LL gang, rivals of the 
One-Nine gang.  

  Although Cole was not a member of either gang, he was standing near 

members of the One-Nine gang when Harrison shot him.  

                 



1 The six charges on which the jury convicted Caldwell were:  (1) first-degree premeditated 
murder in violation of Minn.Stat. § 609.185(a)(1) (2010); (2) first-degree premeditated 
murder for the benefit of a gang in violation of Minn.Stat. § 609.185(a)(1) and 

  (2010);  (3)  first-degree  drive-by  murder  in  violation  of  Minn.Stat.  § 
609.185(a)(3) (2010); (4) first-degree drive-by murder for the benefit of a gang in violation 
of Minn.Stat. § 609.185(a)(3) and 

; (5) second-degree drive-by 
murder in violation of 

, subd. 1 (2010); and (6) second-degree drive-
by murder for the benefit of a gang in violation of 

, subd. 1(2) and 

, subds. 2, 3.   State v. Caldwell, 

 (Minn. 2011) 
(“Caldwell I”).                                                           
                               2                                         
    At Petitioner’s jury trial, the prosecution presented evidence regarding the LL gang, 
including evidence about hand signs, drug activities, and the rivalry with the One-Nine gang.  

Caldwell I, 803 N.W2d at 379–81.  A witness confirmed that a photograph of Caldwell 
showed him displaying the LL gang sign.  

.  The prosecution called numerous trial 
witnesses, some of whom were in Caldwell’s SUV at the time of the shooting, including 
Carnell Harrison2 and William Brooks, and some of whom were not present at the shooting, 
but discussed the shooting with Caldwell afterwards, including Shawntis Turnage.  

   
    Turnage testified that at a party shortly after the shooting, he encountered Caldwell, 

who recounted “g[etting] down” with the One-Nines, which Turnage understood to mean 
“fighting or shooting or [a] brawl or something.”  Caldwell II, 

.  Turnage 
also testified that Caldwell had explained that a One-Nine gang leader known as “Ill Will” 
had been the intended target of the shooting, and Caldwell had described the gun used in the 
shooting as a “grey and black Smith & Wesson” 9 mm semiautomatic pistol that Turnage 

knew Caldwell possessed.  

                                             
    Caldwell  was  represented  by  counsel  during  his  jury  trial.    Prospective  jurors 
completed a 91-question questionnaire, and during voir dire, defense counsel demonstrated 
his familiarity with the completed questionnaires by asking some particularized questions of 
the venire.  Caldwell I, 803 N.W.2d at 386–87.  Defense counsel also prepared a list of a 

number of prospective jurors whom he planned to strike, and moved to strike several jurors 
for cause, with some success.  Id. at 387.                                

2 Carnell Harrison was the brother of the shooter, Kirk Harrison.         
                               3                                         
    Also, during trial, Caldwell’s mother disrupted the proceedings on a number of 
occasions, for which she was initially temporarily barred from the courtroom, and later 

banned from the courtroom for the duration of the trial.  (See R&R at 42–47.)  Prior to 
delivering the final jury instructions, the district judge permitted members of the public an 
opportunity to leave the courtroom, but then locked the doors of the courtroom during the  
final jury instructions.  (Id. at 48.)                                    
    As noted, the jury ultimately convicted Caldwell on all six counts and the district court 
sentenced him to life in prison without the possibility of parole.  Caldwell I, 

.                                                                      
    In addition to the charges brought against Caldwell, the shooter, Kirk Harrison, was 
also prosecuted for Cole’s murder.  

.  Kirk Harrison proceeded to a bench trial in 
Hennepin County District Court, where he was convicted of unintentional murder in the 
second degree for causing death while committing the felony of drive-by murder.  

.  

The court found that the prosecution had failed to prove that Kirk Harrison had the intent to 
cause the death of another, or that the LLs met the statutory definition of a gang.  

   
    Caldwell  filed  a  direct  appeal,  which  was  later  stayed  so  that  he  could  file  a 
postconviction motion.  

  In Caldwell’s first postconviction motion, he argued, as relevant 
here, that:  (1) the doctrine of non-mutual collateral estoppel barred his conviction; (2) he 

received ineffective assistance of counsel; and (3) he was denied his Sixth Amendment right 
to a public trial.  

.  The postconviction court denied Caldwell’s petition, which 

                               4                                         
he then appealed.  

.  That appeal was also stayed so that Caldwell could file a second 
postconviction petition.  

                                             

    In Caldwell’s second postconviction petition, he argued that he was entitled to an 
evidentiary hearing on the basis of newly discovered evidence.  

  The postconviction court 
denied  Caldwell’s  second  postconviction  petition,  which  he  appealed.    The  Minnesota 
Supreme Court consolidated Caldwell’s appeals and denied relief.  

; 391.   
    Subsequently, Caldwell filed a third petition for postconviction relief, alleging that 
three witnesses had presented false testimony in his trial.  Caldwell II, 

. He 

requested an evidentiary hearing.  

  In support of his petition, Caldwell submitted a 
notarized  affidavit  from  an  investigator  who  interviewed  certain  witnesses,  including 
Turnage, and obtained statements in which they recanted their trial testimony.  

.  
After  the  postconviction  court  summarily  denied  Caldwell’s request  for an  evidentiary 
hearing, he appealed the denial of the hearing.  

 at 769–70.  The Minnesota Supreme Court 

found that the postconviction court had denied the motion prematurely and remanded the 
matter for an evidentiary hearing.  

.                           
    The postconviction court held the evidentiary hearing in June 2015.  Caldwell v. State, 

 (Minn. 2016) (“Caldwell III”).  Carnell Harrison recanted his trial 
testimony, and Brooks could not be located.   

  After Turnage was sworn as a witness, the 

court informed him of the right against self-incrimination and that the prosecution might 
consider perjury charges.  

.  Turnage indicated that he understood his rights and 
declined the offer to talk to an attorney.  

  On direct examination, Turnage testified that he 
                               5                                         
had never seen Caldwell with a gun, nor had Caldwell told him that he “got down with the 
One-Nines.”  

  at 495–99.  He explained that his testimony was different in 2008 because 

he was young at the time and had felt intimidated.  

.  On cross examination, the 
prosecutor referred to possible perjury charges against Turnage, as well as charges related to 
aiding and abetting an offender after-the-fact, and possible sentences for an aiding and 
abetting offense.  

  In light of Turnage’s apparent confusion about his Fifth Amendment 
rights, the court recessed Turnage’s testimony to allow him to seek counsel.  

.  
Thereafter, Turnage obtained counsel and the hearing resumed three months later.  

  At the 

reconvened hearing, Turnage invoked his Fifth Amendment rights and refused to answer 
further questions.  

                                                   
    The postconviction court then struck Turnage’s testimony from the earlier evidentiary 
hearing, finding that Turnage’s Fifth Amendment waiver had not been complete, knowing, 
and voluntary.  

  The postconviction court also concluded that Carnell Harrison’s new 

testimony was not credible and even if Turnage had not testified at trial, it was unlikely that 
the jury would have reached a different verdict.  

.  The postconviction court 
therefore denied Caldwell’s third motion for postconviction relief.  

  
    Caldwell appealed to the Minnesota Supreme Court, arguing that the postconviction 
court and the prosecutor had interfered with Turnage’s decision to testify at the postconviction 

hearing, thereby violating Caldwell’s Fourteenth Amendment right to due process.  

  In 
addition, he argued that the postconviction court erred by striking Turnage’s testimony, and 
the remedy for the constitutional violation was the dismissal of the indictment.  

.   
                               6                                         
    In Caldwell III, the Minnesota Supreme Court disagreed, finding no violation of 
Caldwell’s constitutional rights.  

 at 500–03.  While it acknowledged that the invocation of 

perjury charges can sometimes lead to the intimidation of a witness, it relied heavily on the 
postconviction court’s first-hand observation of the tone and nature of questioning and found 
that the prosecution had not intimidated Turnage.  

  Nor did the Minnesota Supreme find 
any error on the part of the postconviction court in striking Turnage’s earlier testimony.  

 
Accordingly, it affirmed the postconviction court’s denial of relief.     
    B. Habeas Petition                                                   

    In June 2017, Caldwell filed the instant Petition in this Court pursuant to 

.  He identifies the following bases for his claim that he is being held in violation of U.S. 
law:                                                                      
    Ground One:  Ineffective Assistance of Counsel, in violation of the Sixth 
    Amendment, based on: (1) counsel’s alleged inattentiveness or indifference 
    during jury selection; and (2) counsel’s limited interaction with Caldwell prior 
    to trial.                                                            
    Ground  Two:    Due  process  violation  resulting  from  his  conviction  of 
    committing a crime for the benefit of a gang despite insufficient evidence to 
    satisfy all the elements of that crime.  Namely, he contends that:  (1) there was 
    no evidence presented to show that he or his alleged gang existed for the 
    purpose of engaging in illegal activity nor did any evidence show a pattern of 
    crime committed by the alleged gang; (2) the principal in the crime for which 
    Caldwell was charged with aiding and abetting was acquitted of committing 
    the  crime  for  the  benefit  of  a  gang;  and  (3)  the  amount  of  gang-related 
    testimony prejudiced Caldwell’s right to a fair trial.               
    Ground Three:  Due process violation based on Caldwell’s conviction for 
    intentional and premeditated murder despite insufficient evidence to satisfy all 
    the elements of the crime.  Specifically, he contends that the prosecution failed 
    to present evidence of the principal’s premeditation or intent and the principal 
                               7                                         
    was acquitted of premeditation and intentional murder counts after a bench 
    trial.                                                               
    Ground Four:  Due process violation based on Caldwell’s conviction for 
    aiding and abetting Kirk Harrison, the principal, for a crime for which Harrison 
    had been acquitted after the prosecution had a full and fair opportunity to 
    litigate the issues of Harrison’s intent and premeditation.          
    Ground Five:  Due process violation arising from a postconviction hearing, in 
    which a witness who was in the process of giving testimony favorable to 
    Petitioner, asserted his right against self-incrimination after being threatened 
    with perjury charges and a sentence of up to “half a life sentence” for “aiding 
    an  offender,  accomplice  after  the  fact”  during  the  prosecution’s  cross 
    examination.                                                         
    Ground Six:  Denial of Sixth Amendment right to a public trial based on the 
    exclusion of Caldwell’s mother from the courtroom during trial, and later the 
    entire floor of the courthouse in which the courtroom was located, and the 
    locking of the courtroom doors during jury instructions.             

(Pet. at 4–14.)                                                           
    In  the  April  2018  R&R,  Magistrate  Judge  Leung  recommended  the  denial  of 
Caldwell’s Petition, rejecting each basis for relief.                     
    As  to  Ground  One,  Caldwell’s  claim  of  ineffective  assistance  of  counsel,  the 
magistrate judge agreed with the Minnesota Supreme Court’s determination that Caldwell 
failed to rebut the presumption that his trial counsel’s voir dire performance was reasonable.  
(R&R at 19–20) (citing Caldwell I, 803 N.W.2d at 386–87).  Likewise, the magistrate judge 
found that the Minnesota Supreme Court was not objectively unreasonable in finding that 
Caldwell had failed to demonstrate prejudice resulting from trial counsel’s allegedly deficient 
performance during voir dire.  (Id. at 23.)                               
                               8                                         
    Regarding the attorney-client relationship, Magistrate Judge Leung also agreed with 
the Minnesota Supreme Court that the number of attorney client consultations alone was not 

determinative of the adequacy of representation and that Caldwell’s trial counsel had advised 
him competently.  (R&R at 23–24) (citing Caldwell I, 803 N.W.2d at 387–88.)  Also, even 
assuming that the Minnesota Supreme Court unreasonably assessed counsel’s performance, 
the magistrate judge found that Caldwell failed to show that he was prejudiced.  (Id. at 25–
26.)                                                                      
    Finding that the Minnesota Supreme Court’s determination of Petitioner’s ineffective 

assistance claim was neither contrary to clearly established law nor objectively unreasonable, 
the magistrate judge recommended that Caldwell be denied relief on Ground One of his 
Petition.  (Id. at 26.)                                                   
    Regarding Grounds Two and Three, Magistrate Judge Leung first addressed the 
sufficiency of the gang-related evidence.  He found no evidentiary deficiencies, noting the 

findings of the Minnesota Supreme Court concerning a number of trial witnesses who 
testified about the following:  (1) their membership in the LL gang; (2) the LL gang hand 
signal; (3) the rivalry between the LLs and the One-Nines; (4) that LLs sell drugs, including 
crack cocaine and marijuana; and (5) that LLs engage in shoot-outs with other gangs that 
encroach upon their territory, including the One-Nines.  (Id. at 29) (citing Caldwell I, 803 

N.W.2d at 380–81).  In addition, the magistrate judge noted that witness Cey Barber had 
testified that he was with Caldwell on the afternoon of the shooting, saw Ill Will in the 
group of One-Nines, heard some shots, put his head down, then heard Kirk Harrison fire 
                               9                                         
more shots.  (Id.)  (citing Caldwell I, 803 N.W.2d at 380–81.)  In light of this evidence, 
Magistrate Judge Leung found that the Minnesota Supreme Court had properly concluded, 

consistent with 

, subd. 9, that there was sufficient evidence from which 
a jury could infer that the LLs had, as a primary activity, the commission of one or more 
enumerated criminal offenses, and were engaged in a pattern of criminal activity.  (Id. at 
30–31) (citing Caldwell I, 803 N.W.2d at 385–86).  Finding that the Minnesota Supreme 
Court’s determination regarding the status of LL as a gang and its gang-related activities 
was not unreasonable, the magistrate judge recommended the denial of relief sought in 

Ground Two of Caldwell’s Petition. (Id. at 33.)                           
    As  to  the  sufficiency  of  the  evidence  concerning  intent  and  premeditation, 
Magistrate Judge Leung focused on the sufficiency of the evidence at Caldwell’s trial, not 
Kirk Harrison’s bench trial.  (Id. at 33.)   The magistrate judge noted that several trial 
witnesses had testified about the rivalry between the LLs and One-Nines and the events 

that occurred on the day of the shooting, including the shooting itself.  (Id. at 34–35) (citing 
Caldwell I, 803 N.W.2d at 379–80).  He agreed with the reasoning of the Minnesota 
Supreme Court that there was sufficient evidence from which a jury could infer that Kirk 
Harrison had a rivalry with Ill Will, that Harrison had tried to shoot him earlier in the day, 
and that Harrison believed he was shooting at Ill Will when he fired into the group of 

people that included Cole and Ill Will.  (Id. at 37) (citing Caldwell I, 

.)   
    As further evidence of intent and premeditation to convict Caldwell of aiding and 
abetting first degree intentional murder, Magistrate Judge Leung noted comments made by 
                              10                                         
Caldwell and Kirk Harrison on the day of the shooting that they intended to retaliate against 
the One-Nines and Kirk Harrison’s actions in initially attempting to shoot at the One-Nines.  

(Id.at 39–41.)  After Harrison’s initial efforts to shoot failed, he realized that the gun’s 
safety was on, and then removed the safety, firing into the crowd of One-Nines six or seven 
times.  (Id.)  While Caldwell argues that the sole testimony concerning intent came from 
Turnage, Magistrate Judge Leung disagreed, noting all of this evidence.  Thus, even 
without Turnage’s testimony that Ill Will had been the target, the magistrate judge properly 
concluded that the Minnesota Supreme Court’s finding was not unreasonable that a jury 

could  have  inferred  that  Harrison  acted  with  intent  to  kill  and  that  the  killing  was 
premeditated.  (Id. at 41.)  Accordingly, the magistrate judge recommended the denial of 
Ground Three of  Caldwell’s Petition.  (Id. at 42.)                       
    In Ground Four of Caldwell’s Petition, he asserts “that his due process rights were 
violated when he was convicted of aiding and abetting Kirk . . . of a crime for which Kirk 

. . . had been acquitted after the prosecution had a full and fair opportunity to litigate the 
issues of [Kirk]’s intent and premeditation.”  (Pet. at 10–11.)  Magistrate Judge Leung 
found that while Caldwell had presented the issue of statutory interpretation of 

 to the Minnesota Supreme Court (concerning liability for the crimes of another), 
the issues of non-mutual collateral estoppel and fundamental fairness were ultimately not 

fairly presented in his consolidated appeal.  (R&R at 12.)  In addition, the magistrate judge 
found that any fundamental fairness claim was now procedurally defaulted, rather than 
merely unexhausted, (id. at 14) (citing State v. Knaffla, 

 (Minn. 1976), 
                              11                                         
and that the Petition is not a “mixed petition,” containing a claim for which there is an 
available state court remedy.  (Id. at 14–15.)  For all of these reasons, Magistrate Leung 

recommended the denial of relief on Count Four.  (Id. at 15.)             
    Regarding Count Five, Caldwell’s due process claim concerning the testimony of 
postconviction witness Turnage, the magistrate judge rejected Caldwell’s argument that 
the  government  had  interfered  with  the  defense  witness  in  violation  of  the  Sixth 
Amendment.  (R&R at 59–60.)  The magistrate judge found that the Minnesota Supreme 
Court’s determination of no interference by the prosecutor was neither contrary to clearly 

established federal law nor unreasonable.  (Id. at 62–63) (citing Caldwell III, 

).   Accordingly, he recommended that Caldwell be denied relief as to this claim.  
    Finally, with respect to Ground Six of Caldwell’s Petition, Magistrate Judge Leung 
found that Caldwell’s right to a public trial was not denied when his mother was excluded 
from the courtroom and the trial judge locked the courtroom doors during jury instructions.  

(Id. at 42–52.)  He noted that although the Sixth Amendment guarantees the right to a 
public trial in all criminal prosecutions, that right must give way in some situations to other 
rights or interests.  (Id. at 49.)  But most fatal to Caldwell’s claim, the magistrate judge 
found,  was  that  not  all  spectators  were  excluded  from  the  courtroom.    (Id.  at  50.)    
Accordingly, he recommended that this claim for relief be denied.         

III.   DISCUSSION                                                         
    The district court reviews de novo those portions of the R & R to which a specific 
objection is made and “may accept, reject, or modify, in whole or in part, the findings or 
                              12                                         
recommendations made by the magistrate judge.”  

(b)(1); accord D. Minn. 
L.R. 72.2(b).  Here, Petitioner objects to all of the magistrate judge’s findings, reasserting 

the arguments that he presented to Magistrate Judge Leung.                
    A.  Procedural Bar for Claim Concerning Acquittal of Principal       
    As noted, the magistrate judge recommended the denial, on procedural grounds, of 
Caldwell’s due process claim that a defendant who has been charged as an accomplice cannot 
be convicted of a crime when the principal has been acquitted of the same crime.  (R&R at 
12–15.)  In his Objections, Caldwell argues that simply characterizing an issue as one 
involving due process is sufficient to give state courts the opportunity to decide the federal 

constitutional issue.  (Objs. at 11.)                                     
    “28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with 
a  ‘fair  opportunity’ to  apply  controlling  legal  principles  to  the facts  bearing upon  his 
constitutional claim.”  Anderson v. Harless, 

 (1982) (citing Picard v. Connor, 

 (1971)).  Thus, a habeas petitioner must have “fairly presented” the “substance” 

of his federal habeas corpus claim to the state courts, prior to seeking habeas relief.  

   
    As the magistrate judge observed, in Caldwell I, the Minnesota Supreme Court 
addressed the question of whether a defendant charged as an accomplice can be convicted of 
a crime for which the principal has been acquitted.  (Id. at 10.)  Having reviewed the appellate 
record, Magistrate Judge Leung noted that the argument was two-pronged, with the first prong 

grounded in statutory  interpretation of 

, and the second based on 

                              13                                         
Standefer v. United States, 

 (1980), and the doctrine of non-mutual collateral 
estoppel.  (R&R at 10–11) (citing Resp’t’s App. at 75, 76–80 [Doc. No. 12]).   

    Because Caldwell’s counsel clarified at oral argument before the Minnesota Supreme 
Court that his argument was limited to the interpretation of 

, subd. 4, the 
Minnesota Supreme Court confined its analysis in Caldwell I to that issue.  

 n.3.  While Caldwell now acknowledges that counsel may have waived the non-mutual 
estoppel argument before the state court, he asserts that nothing indicates the waiver of a 
fundamental fairness argument present in the instant claim.  (R&R at 13) (citing Pet’r’s Resp. 

at 23–24 [Doc. No. 15]).  Alternatively, he asks this Court to deem any unexhausted claims 
deleted from this Petition, so as to permit the consideration of all of his exhausted claims, or 
that he be granted leave to amend his Petition in order to proceed with his exhausted claims.  
(Id.) (citing Pet’r’s Resp. at 24.)                                       
    The Court agrees with Magistrate Judge Leung that the issue of fundamental fairness 

was “part and parcel” of the issue of non-mutual collateral estoppel, and not a separate federal 
claim.  (Id.)  As the magistrate judge observed, in order to “fairly present” a constitutional 
claim,  a  petitioner  must  refer  to  a  “specific  federal  constitutional  right,  a  particular 
constitutional provision, a federal constitutional case, or a state case raising a pertinent federal 
constitutional issue.”  (Id.) (citing Nash, 

 (8th Cir. 2015)).  But because 

Caldwell’s counsel waived the issue of non-mutual collateral estoppel, the fundamental 
fairness claim was not fairly presented to the Minnesota Supreme Court.  Accordingly, the 

                              14                                         
Minnesota Supreme Court lacked a fair opportunity to apply the law to the facts relevant to 
this constitutional claim.                                                

    As noted in the R&R, a claim is unexhausted if state law allows the petitioner to raise 
the claim by any available state court procedure.  See 

(c).  However, where 
a claim has not been fairly presented and a state procedural rule precludes further litigation of 
the claim, the claim is procedurally defaulted.  Coleman v. Thompson, 

 
(1991).  In Minnesota, the state procedural rule enunciated in Knaffla, 

, 
holds that “where direct appeal has once been taken, all matters raised therein, and all claims 

known but not raised, will not be considered upon a subsequent petition for postconviction 
relief.”   This procedural rule therefore denies further litigation of claims that could have been 
raised on direct appeal, Murphy v. King, 

, 849–50 (8th Cir. 2011), barring not 
only claims that were known at the time of direct appeal, but also claims that should have 
been known.  Sontoya v. State, 

 (Minn. 2013).  The Court agrees with 

Magistrate Judge Leung that because Caldwell raised a fundamental fairness argument as part 
of his consolidated direct appeal, but subsequently waived it at oral argument, Knaffla bars 
him for pursuing this argument in a subsequent petition for postconviction relief.  The claim 
is therefore procedurally defaulted.                                      
    As the magistrate judge observed, while procedurally defaulted claims are generally 

barred from federal habeas review, Coleman, 

, they may be considered on the 
merits only when one of two exceptions applies:  (1) the petitioner can demonstrate cause for 
the default and actual prejudice as a result of the alleged violation of federal law; and (2) 
                              15                                         
where the petitioner can demonstrate that the failure to consider the claim will result in a 
fundamental miscarriage of justice.  

  If neither exception applies, the federal court will not 

entertain the merits of the otherwise procedurally defaulted claim.  These exceptions do not 
apply here, and, as Magistrate Judge Leung notes, Caldwell proposes dropping this claim 
entirely so that the other claims in his Petition may be considered.  Because the magistrate 
judge considered the merits of Caldwell’s other claims, he appears to have granted this 
alternative request to examine Caldwell’s exhausted, non-defaulted claims.  This Court agrees 
with that approach and proceeds to analyze Caldwell’s other grounds for relief.3    

    B.  Right to Present a Complete Defense                              
    Caldwell first objects to the magistrate judge’s analysis and recommendation as to his 
due process claim arising from the government’s questioning of Turnage at the postconviction 
evidentiary hearing.  (Objs. at 1–6.)  Caldwell contends that Turner’s invocation of the Fifth 
Amendment and subsequent refusal to testify resulted from the prosecution’s threats and 
intimidation.  (Pet. at 12.)   In his Objections, Caldwell asserts that the magistrate judge drew 

artificial distinctions between the facts here and those present in Webb v. Texas, 

, 
97–98 (1972), a case in which the comments made by the prosecution to a witness were found 
to be violative of due process.  He also argues that the Minnesota Supreme Court and 
Magistrate Judge Leung erred by presuming that “there was some legitimate reason for 


3 The Court also agrees with the magistrate judge that Caldwell’s Petition is not a mixed 
petition, containing both exhausted and unexhausted claims, and which would require 
dismissal without prejudice.  (R&R at 15.)  “The presence of a procedurally defaulted claim 
. . . does not create a mixed petition.”  Maxwell v. Gau, No. 12-cv-1770 (ADM/TNL), 

, at *9 n.3 (D. Minn. Apr. 8, 2014).                            
                              16                                         
Turnage to be threatened the way he was.”  (Objs. at 5.)  He asserts that, as a practical matter, 
Turnage  could  not  have  been  prosecuted  for  perjury  due  to  the  applicable  statute  of 

limitations.  (Id.)                                                       
    The Court disagrees with Caldwell’s arguments.  As the magistrate judge observed, 
“[i]t is not improper per se for a prosecuting attorney to advise prospective witnesses of the 
penalties for testifying falsely.  But warnings concerning the dangers of perjury cannot be 
emphasized to the point where they threaten and intimidate the witness into refusing to 
testify.”  United States v. Risken, 

 (8th Cir. 1986) (quotation omitted).       

    In Caldwell III, the Minnesota Supreme Court considered whether the prosecution had 
interfered  with  Caldwell’s  right  to  present  a  complete  defense  under  the  Fourteenth 
Amendment,  assuming  without  deciding  that  the  right  also  applied  to  postconviction 
proceedings.  886 N.W.2d at 500–01.  Here, the magistrate judge noted that in Webb, 

, the trial judge had made threatening remarks to a single witness for the defense in 

the context of trial.  (R&R at 60.)  He noted a lack of Supreme Court precedent addressing a 
due process claim based on government interference with a defense witness in the context of 
a postconviction proceeding.  (Id.)  Magistrate Judge Leung also cited authority for the 
proposition that the “right to due process [in postconviction context] is not parallel to a trial 
right, but rather must be analyzed in light of the fact that [the individual] has already been 

found guilty at a fair trial, and has only a limited interest in postconviction relief.”  (Id. at 61) 
(quoting Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 

 (2009)).  
The Court agrees that because there is no U.S. Supreme Court authority confronting the 
                              17                                         
specific question, the state court’s decision cannot be considered contrary to any decisions of 
the U.S. Supreme Court.  Woods v. Donald, 

 (2015).   

    This  Court  also  agrees  with  the  magistrate  judge’s  substantive  finding  that  the 
Minnesota Supreme Court’s ruling on this claim was not unreasonable.  (R&R at 61–62.)  As 
Magistrate Judge Leung noted, the state court’s factual determinations are presumed correct, 
unless clear and convincing evidence shows that the findings lack support in the record.  (Id. 
at 61) (citing Whitehead v. Dormire, 

 (8th Cir. 2003)).   Indeed, the 
Minnesota Supreme Court found the questions that the prosecutor posed to Turnage at the 

postconviction hearing were “inartful.”  Caldwell III, 

.  However, the court 
relied on the postconviction court’s first-hand observation of the exchange, finding that the 
postconviction court was in the best position to evaluate whether Turnage was in fact 
intimidated, “having heard the tone of the questioning.”  

 The postconviction court found 
that the prosecutor had not attempted to intimidate Turnage, but instead had simply vigorously 

cross-examined him.  

  This conclusion finds support in the record.  This Court thus agrees 
with the magistrate judge that Caldwell has not shown by clear and convincing evidence that 
the Minnesota Supreme Court’s determination lacked support in the record, rendering it 
unreasonable.  Accordingly, Caldwell is not entitled to habeas relief on this basis. 
    C.  Sufficiency of the Evidence                                      

    Caldwell also objects to the magistrate judge’s findings and recommendations with 
respect to his due process claims concerning the sufficiency of the evidence, asserted in 
Grounds Two and Three of his Petition.  (Objs. at 6–7.)                   
                              18                                         
    The magistrate judge applied the proper standard of review to these claims.  (R&R at 
27.)  As he noted, the Constitution requires proof beyond a reasonable doubt in order to 

convict a person of a crime.  Jackson v. Virginia, 

 (1979).  A habeas 
petitioner is entitled to relief if, upon a review of the record evidence at trial, no rational trier 
of fact would have found proof of guilt beyond a reasonable doubt.  Nash, 

. 
“[A] state-court decision rejecting a sufficiency challenge may not be overturned on federal 
habeas unless the ‘decision was objectively unreasonable.’”  Parker v. Matthews, 

 (2012) (per curiam) (quoting Cavazos v. Smith, 

 (2011) (per curiam)).    

         1.   Crime Committed for the Benefit of a Gang                  
    As to the evidence regarding whether Cole’s killing was committed for the benefit of 
a gang, Caldwell acknowledges that some witnesses testified that the LLs sold drugs and that 
the LLs and One-Nines were known enemies.  (Objs. at 7.)  However, he asserts that “[t]here 
was nothing to give any indication from that testimony that these things were one of the 

primary activities of the gang.”  (Id.)                                   
    The Court agrees with the magistrate judge’s analysis of the law and the facts.  (R&R 
at 27–33.)  As noted, in Caldwell I, 

, the Minnesota Supreme Court found 
that the evidence at Caldwell’s trial established that the LLs met the statutory definition of a 
gang in 

, subd. 1.   Namely, the court found that:  (1) Caldwell did not 

dispute that the LL gang is a group of three or more people, with a common identifying sign 
or symbol, which was supported by the testimony of several witnesses; (2) that witness 
testimony was sufficient for the jury to find that the LL gang had, as one of its primary 
                              19                                         
activities, the commission, or attempted commission, of one or more enumerated offenses in 

, subd. 9, including drive-by shooting and certain drug offenses; and (3) 

witness testimony concerning drug sales and a pattern of shooting rival gangs was sufficient 
for the jury to infer that LL gang members had engaged in a pattern of criminal activity.  

.  Thus, the Minnesota Supreme Court found that there was sufficient evidence to 
support Caldwell’s conviction for aiding and abetting first-degree murder for the benefit of a 
gang.  

                                                                
    The  Minnesota  Supreme  Court’s  determination  was  not  unreasonable,  as  the 

magistrate judge properly found.  Again, several witnesses testified that the LLs sold drugs 
and shot at rival gang members.  Juries have broad discretion in drawing inferences from the 
evidence presented at trial, as long as they “draw reasonable inferences from basic facts to 
ultimate  facts.”    Coleman,  566  U.S.  at  655  (citation  omitted).    It  was  certainly  not 
unreasonable for the Minnesota Supreme Court to find that a jury could infer from the 

evidence presented at trial that the LLS had, as a primary activity, the commission of one or 
more of the offenses listed in 

, subd. 9, and that they engaged in a pattern 
of criminal activity.  See Cavazos, 

 (“[E]vidence is sufficient to support a 
conviction so long as ‘after viewing the evidence in the light most favorable to the prosecution 
any rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.’”) (quoting Jackson, 

).  In sum, the Court finds that it was 
not  unreasonable  for  the  Minnesota  Supreme  Court  to  find  that  the  evidence  was 

                              20                                         
constitutionally sufficient to support Caldwell’s conviction for aiding and abetting a crime for 
the benefit of a gang.  Accordingly, Caldwell is not entitled to relief on this basis.  

         2.   Premeditation and Intent                                   
    With respect to the sufficiency of the evidence concerning premeditation and intent, 
Caldwell asserts that only one witness, Turnage, testified that Caldwell had bragged about the 
crime after the fact, and stated that Ill Will was the intended target.  (Objs. at 8.)  But he asserts 
that Turnage later recanted that testimony, only to be “threatened into silence” by the 
prosecution.  (Id.)  He also argues that Cey Barber testified to initially hearing a first shot 

from elsewhere, before Kirk Harrison started shooting.  (Id.)  Thus, Caldwell contends, there 
was not sufficient evidence from which a reasonable jury could have found the elements of 
premeditation and intent.  (Id.)                                          
    The Court disagrees.  As noted in Caldwell I, “[i]ntent means that the defendant ‘either 
has the purpose to do the thing or cause the result specified or believes that the act, if 

successful, will cause that result,’” 

 (quoting 

, subd. 
9(4)), and “[p]remeditation means ‘to consider, plan or prepare for, or determine to commit 
the act referred to prior to its commission.’”  

  (quoting 

).  The 
Minnesota Supreme Court found that there was sufficient evidence at trial from which the 
jury  could  infer  that  Kirk  Harrison  acted  with  intent  to  kill  and  that  the  killing  was 

premeditated.  

                                                        
    Caldwell argues that the only testimony related to intent to cause the death of a specific 
person, Ill Will, came from Turnage, who later attempted to recant his testimony.  (Objs. at 
                              21                                         
8.)  But Turnage did not provide the only testimony establishing intent.  As the magistrate 
judge noted, there was evidence of the gang rivalry between the  LLs and One-Nines, 

including a previous incident in which the One-Nines had shot at Caldwell and Kirk.  (R&R 
at 40) (citing Caldwell I, 803 N.W.2d at 379–81).  Moreover, there was testimony regarding 
the particular rivalry between Kirk Harrison and Ill Will.  (Id. at 41.)  Carnell Harrison and 
Brooks testified regarding several comments made by Caldwell and Kirk Harrison on the day 
of the shooting that they intended to retaliate against the One-Nines, including a comment 
made by Kirk Harrison to Caldwell shortly before the shooting that Caldwell should have 

taken a shot at the One-Nines earlier.  (Id. at 40)  There was evidence that Kirk believed he 
was shooting at Ill Will when he fired into the group of One-Nines.  (Id. at 41.)   Furthermore, 
Harrison took the time to remove the gun’s safety after he initially failed to shoot at the One-
Nines, and proceeded to fire the gun at the group multiple times.  (Id.)   The Court therefore 
agrees with the magistrate judge that even without Turnage’s testimony that Ill Will had been 

the intended target, the Minnesota Supreme Court’s finding was not unreasonable that 
sufficient evidence supported the jury’s inference that Kirk Harrison acted with intent to kill 
and the killing was premeditated.  In fact, the court’s reasoning in Caldwell I was thorough 
and well supported by the evidence.  Accordingly, this basis of relief fails.   
    D.  Right to Public Trial                                            

    As to Caldwell’s Sixth Amendment claim concerning the closure of the courtroom 
during his trial, he takes issue with the magistrate judge’s analysis that because the courtroom 
was only partially closed, there was no violation.  (Objs. at 8.)  Caldwell contends that neither 
                              22                                         
Waller v. Georgia, 

 (1984), nor Presley v. Georgia, 

 (2010), contain 
language limiting the applicability of a defendant’s right to a public trial based on whether 

the courtroom is partially closed.  (Objs. at 9 )  He also contests the determination of the 
Minnesota Supreme Court in Caldwell I, in which it concluded that there was no closure.  (Id.)   
    While the Sixth Amendment provides that the accused shall have a public trial in all 
criminal prosecutions, the Supreme Court has held that this right must give way in certain 
instances to other rights, including the defendant’s right to a fair trial.  Waller, 

; 
accord Presley, 

.  The R&R fully recounts the pattern of Caldwell’s mother’s 

outbursts during trial, which ultimately prompted the court to exclude her from the courtroom 
and to lock the courtroom door during jury instructions.  (R&R at 42–48.)  The trial court 
judge expressed his concerns regarding the effect of Caldwell’s mother’s visible and audible 
reactions to court proceedings on her son’s right to a fair trial.  (Id. at 43–44) (quoting portion 
of trial transcript in which court admonished Caldwell’s mother and warned her that her 

conduct could hurt her son’s case).                                       
    Caldwell argues that neither Waller nor Presley address Sixth Amendment rights in 
the context of a partially closed courtroom.  (Objs. at 9.)  Certainly, the magistrate judge 
acknowledged that those cases involved complete closures of the courtroom to all spectators,  
(R&R at 50) (citing Waller, 

; Presley, 

), but he also observed 

that several circuit courts of appeal have rejected habeas claims based on partial closures, 
distinguishing them from Waller.  (Id. at 51) (citing Enriquez v. Sec’y, 

, 
654–56 (11th Cir. 2016) (per curiam); Drummond v. Houk, 

, 402–04 (6th Cir. 
                              23                                         
2015); Angiano v. Scribner, 

 (9th Cir. 2010); Garcia v. Bertsch, 

 (8th Cir. 2006)).  Magistrate Judge Leung further noted that absent Supreme 

Court authority that confronts the specific issue in question, the state court’s decision cannot 
be considered “contrary to” Supreme Court authority.  (Id.) (citing Woods, 

).   
Accordingly, because the Minnesota Supreme Court did not reach a conclusion contrary to 
the U.S. Supreme Court, nor decide Caldwell’s case differently than the Supreme Court on a 
set of materially indistinguishable facts, the magistrate judge properly found no violation of 
Caldwell’s right to a public trial.  (Id. at 52.)                         

    This Court therefore finds no Sixth Amendment violation based on the exclusion of 
Caldwell’s mother from the courtroom after she repeatedly disrupted the proceedings.  At no 
point during Caldwell’s trial were all spectators excluded, even when the courtroom doors 
were locked.  Caldwell is not entitled to habeas relief on this basis.    
    E.  Ineffective Assistance of Counsel                                

    With respect to Caldwell’s claim of ineffective assistance of counsel in Ground One 
of his Petition, he objects to the magistrate judge’s conclusions, which, in turn, relied upon 
the conclusions of the Minnesota Supreme Court.  (Objs. at 10.)           
    In order to obtain relief for ineffective assistance of counsel, Petitioner must establish 
both that his counsel’s performance “fell below an objective standard of reasonableness” and 

that the deficient performance prejudiced his defense.  Strickland v. Washington, 

 (1984).  Caldwell bears the burden of establishing to a reasonable probability that, 
but  for  his  counsel’s  alleged  errors,  the  result  of  the  proceeding  would  have  been 
                              24                                         
different.  

  This is a “heavy burden,” United States v. Apfel, 

 (8th Cir. 
1996), requiring a showing that the deficiency in counsel’s performance was “so serious that 

counsel  was  not  functioning  as  the  ‘counsel’  guaranteed  the  defendant  by  the  Sixth 
Amendment.”  Strickland, 

. A defendant must show that counsel's errors were 
not the result of “reasonable professional judgment.”  

. Moreover, a court’s review 
of counsel’s performance is highly deferential, and there is a strong presumption of adequate 
assistance.  

 A defendant must then show that the deficient performance actually prejudiced 
the outcome of the proceedings.  

.                              

           1. Voir Dire Performance                                      
    Caldwell argues that his trial counsel perfunctorily “passed six jurors for cause” and 
used peremptory strikes on eight jurors without asking a single question of any of these jurors.  
(Objs. at 10.)  He contends that this “effectively defeated the main purposes of jury selection,” 
which he identifies as “(1) establish[ing] rapport with the jury; (2) learn[ing] about jurors’ 

beliefs and attitudes to make intelligent use of challenges; and (3) familiariz[ing] the jury with 
applicable legal and factual concepts.”  (Id.) (citing Thomas Mauet, Trial Techniques 42 
(Aspen 2007)).                                                            
    The magistrate judge found that Caldwell failed to meet the performance and prejudice 
prongs necessary to establish a claim of ineffective assistance.  (R&R at 19.)  As Magistrate 

Judge Leung noted, Caldwell presented arguments that asked this Court to conduct a de novo 
review of trial counsel’s performance, which is improper in the habeas context.  (Id. at 20) 
(citing Williams v. Roper, 

 (8th Cir. 2012)).  Rather, the proper question is 
                              25                                         
whether the Minnesota Supreme Court’s decision on this issue in Caldwell I was “contrary 
to, or an unreasonable application of, clearly established federal law.”  Williams, 

.                                                                      
    This Court agrees with the magistrate judge’s analysis that Caldwell has not argued, 
much less shown, that the Minnesota Supreme Court’s conclusion met the standard necessary 
for relief.  As the court found in Caldwell I, his trial counsel appears to have been well 
prepared during voir dire, as his questions demonstrated his familiarity with the answers on 
the jurors’ questionnaires and he asserted his right to strike jurors for cause on several 

occasions.  803 N.W.2d at 386–87.  Likewise, the magistrate judge properly found that even 
if the Minnesota Supreme Court had unreasonably applied the performance prong of the 
Strickland analysis, Caldwell failed to demonstrate that its application of the prejudice prong 
was unreasonable.  (R&R at 21.)  As the Minnesota Supreme Court noted, Caldwell failed to 
assert or demonstrate that any particular juror should have been stricken.  Caldwell I, 

.  Thus, this Court also agrees with the magistrate judge that it was not 
objectively unreasonable for the Minnesota Supreme Court to find that Caldwell had failed to 
show prejudice resulting from trial counsel’s performance during voir dire.  Strickland, 

.  Accordingly, because Caldwell has not met the heavy burden of demonstrating 
deficient performance and resulting prejudice, this basis for relief fails.   

           2. Attorney-Client Relationship                               
    As to the portion of Caldwell’s ineffective assistance claim based on the attorney-
client relationship, he argues that he was denied effective assistance because trial counsel met 
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with him only three times before trial.  (R&R at 23.)  Caldwell distinguishes the facts of his 
case from Morris v. Slappy, 

 (1983), which Magistrate Judge Leung cited in the 

R&R.  (Objs. at 10.)  He asserts that trial counsel in Slappy had the benefit of investigative 
work done by prior defense counsel, which was not the case here.  (Id.)   Caldwell also argues 
that he “was only allowed to see the evidence against him when in the presence of his attorney, 
meaning that except for the very rare instances he met with counsel, he was not able to view 
the evidence against him before trial.”  (Id.)  He contends that the magistrate judge’s 
recommendation to deny relief on this basis constitutes an improper application of clearly 

established federal law.  (Id. at 11.)                                    
    The  Court  disagrees.    In  Slappy,  the  U.S.  Supreme  Court  held  that  the  Sixth 
Amendment does not guarantee a “meaningful relationship” between a defendant and his 
counsel.  

.  Nor does “every restriction on counsel’s time or opportunity to 
investigate or to consult with his client or otherwise prepare for trial violate[ ] a defendant’s 

Sixth Amendment right to counsel.”  

  In Slappy, the Supreme Court found no constitutional 
violation and concluded that substitute counsel, who undertook representation only six days 
before trial, was well-prepared.  

 at 12–13.  In particular, the court noted counsel’s prompt 
review of the investigation, his review of materials prepared for trial by prior defense counsel, 
his conferences with the defendant, and his statements to the court that he was ready for trial.  

                                                                       
    Here, the Minnesota Supreme Court properly examined counsel’s performance and 
found  that  counsel  had  advised  Caldwell  competently,  having  reviewed  with  him  the 
                              27                                         
witnesses who were to testify for the defense and Caldwell’s desire to reject a plea offer, to 
have a speedy trial, and to testify on his own behalf.  Caldwell I, 

.  Having 

reviewed the full trial record, the court concluded that trial counsel was well prepared and 
conducted a competent defense, including the cross examination of witnesses who presented 
an alternative theory of the case.  

  Furthermore,  defense counsel had also hired an 
investigator who met with Caldwell a few times prior to trial, and Caldwell himself informed 
the district court that he did not wish to retain new counsel.  

  In sum, the facts here fully 
support the findings of the magistrate judge and the Minnesota Supreme Court that there was 

no Sixth Amendment violation based on any deficiencies in the attorney-client relationship.   
    But even if the facts demonstrated otherwise, the Court agrees with the magistrate 
judge that Caldwell has not demonstrated that his counsel’s performance actually prejudiced 
his case.  Strickland, 

.   Accordingly, this ground of relief fails.   
    F.  Certificate of Appealability                                     

    A § 2254 habeas corpus petitioner cannot appeal an adverse ruling on his petition 
unless he is granted a Certificate of Appealability.  See 

(c)(1); Fed. R. 
App. P. 22(b)(1).  A Certificate of Appealability cannot be granted unless the petitioner 
“has made a substantial showing of the denial of a constitutional right.”  

(c)(2).  Such a “showing” requires that he demonstrate “that reasonable jurists would 

find the district court’s assessment of the constitutional claims debatable or wrong.”  Slack 
v. McDaniel, 

 (2000).  Here, Caldwell has not made such a showing, and 
thus is not entitled to a Certificate of Appealability.                   
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IV.  CONCLUSION                                                           
    Based on the foregoing, and all the files, records and proceedings herein, IT IS 

HEREBY ORDERED THAT:                                                      
    1.   Caldwell’s Petition for Writ of Habeas Corpus by a Person in State Custody 
         Pursuant to 

 [Doc. No. 1] is DENIED;            

    2.   The Court ADOPTS the Magistrate Judge’s Report and Recommendation 
         [Doc. No. 16] in its entirety;                                  

    3.   Caldwell’s Objections [Doc. No. 17] to the Report and Recommendation are 
         OVERRULED;                                                      

    4.   A Certificate of Appealability is NOT GRANTED; and              

    5.   This action is DISMISSED WITH PREJUDICE.                        

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Dated:  February 5, 2019       s/Susan Richard Nelson                     
                             SUSAN RICHARD NELSON                        
                             United States District Judge                



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