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Keller v. Pringle

United States District Court, D. North Dakota

June 27, 2016

Brandon Keller, Petitioner,
v.
Chad Pringle, Warden, Respondent.

          Brandon Keller, Petitioner, Pro Se.

          Chad Pringle, Respondent, represented by Michael T. Mahoney, ND Attorney General's Office.

          REPORT AND RECOMMENDATION

          ALICE R. SENECHAL, Magistrate Judge.

         Brandon Keller (Keller) petitioned for habeas relief under 28 U.S.C. § 2254. (Doc. #1). After preliminary review, the court ordered service on the respondent. (Doc. #3). The respondent moved to dismiss the habeas petition, (Doc. #7), and Keller has responded to that motion, (Doc. #12).

         Summary of Recommendation

         In his petition, Keller alleges that improper jury instructions resulted in him being convicted of two crimes which the North Dakota Supreme Court later held were incognizable. Specifically, he contends that the state district court violated his due process rights when it instructed the jury that Keller could be found guilty of conspiracy to commit, and attempt to commit, an unintentional murder-murder under circumstances manifesting an extreme indifference to the value of human life. Recent cases held both crimes were incognizable under North Dakota law, since extreme indifference murder is a general intent crime and both conspiracy to commit murder and attempted murder are specific intent crimes.

         This court concludes, however, that Keller's claims concerning jury instructions are barred by the statute of limitations and that he is not entitled to equitable tolling of the one-year limitation period. The other claims Keller asserts are not cognizable in a federal habeas petition. Accordingly, Keller's petition for habeas relief should be dismissed.

         Background

         On December 12, 2003, a jury found Keller guilty of (1) conspiracy to commit murder, (2) attempted murder, and (3) reckless endangerment.[1] (Resp. Ex. #5; Resp. Ex. #6; Resp. Ex. #7). Keller appealed, and the North Dakota Supreme Court affirmed the criminal judgment on August 18, 2005. State v. Keller, 695 N.W.2d 703 (N.D. 2005).

         On the attempted murder charge, the state district court instructed the jury on both intentional murder and extreme indifference murder: "A person is guilty of Attempted Murder if he either intentionally or knowingly attempts to cause the death of another human being; or if he willfully attempts to cause the death of a human being under circumstances manifesting extreme indifference to the value of human life." (Resp. Ex. #4, p. 11). Additionally, the state district court instructed the jury as to the essential elements of the attempted murder charge:

The burden of proof resting upon the State is satisfied-only if the evidence shows, beyond a reasonable doubt, the following essential elements of the offense charged:
That on or about the 2nd-3rd day of August, 2003, in Burleigh County, North Dakota, the Defendant, Brandon Keller,
1. Attempted to cause the death of a Bismarck Police Officer intentionally or knowingly; or
2. Attempted to cause the death of a Bismarck Police Officer under circumstances manifesting extreme indifference to the value of human life.

         Id. The attempted murder verdict form did not require the jury to specify whether its verdict was based on evidence of intentional murder or of extreme indifference murder. (Resp. Ex. #6).

         On the conspiracy to commit murder charge, the state district court instructed the jury that "[a] person commits Criminal Conspiracy if that person agrees with one or more persons to engage in or cause conduct constituting an offense, and any one or more of those persons acts overtly to effect an objective of the conspiracy." (Resp. Ex. 4, p. 9). Additionally, the state district court instructed the jury as to the essential elements of conspiracy to commit murder:

The burden of proof resting upon the State is satisfied only if the evidence shows, beyond a reasonable doubt, the following essential elements of the offense charged that:
1. On or about the 1st day of July and the 31st day of July, 2003, in Burleigh County, North Dakota,
2. The Defendant, Brandon Keller,
3. Agreed with one or more persons to engage in or cause conduct which, in fact, constituted the offense of murder,
4. And any one or more persons performed the overt act of:
a. Obtaining weapons; or
b. Obtaining ammunition; or
c. Acquiring black clothing; or
d. Acquiring ski masks; ...

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