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STATE OF MINNESOTA IN SUPREME COURT A07-2205

Hennepin County

Meyer, J. Took no part, Magnuson, C.J. and Gildea, J.

Adl El-Shabazz, f/k/a A.C. Ford, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed: August 7, 2008 Office of Appellate Courts

SYLLABUS The postconviction court did not err in summarily denying appellants petition for postconviction relief. Affirmed. Considered and decided by the court en banc, without oral argument. OPINION MEYER, Justice. Appellant Adl El-Shabazz (El-Shabazz), formerly known as A.C. Ford, appeals the postconviction courts summary denial of his petition for postconviction relief. We affirm.

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On September 25, 1992, Minneapolis Police Officer Jerome Haaf was shot to death by two or three young males at the Pizza Shack restaurant in south Minneapolis.1 State v. Ford, 539 N.W.2d 214, 219 (Minn. 1995). At trial, several witnesses testified for the State. Dawn Jones, the girlfriend of one of the men involved, testified that she was present when El-Shabazz, Monterey Willis (Monterey), Mwati "Pepi" McKenzie, Shannon Bowles, and Samuel "Sharif" Willis (Sharif) discussed a plan to shoot a bus driver or a police officer. Id. at 218. Richard, a minor, testified that he met up with El-Shabazz, McKenzie, Bowles, Monterey, and Jones the night of the shooting. Id. He further testified that El-Shabazz first asked if everyone was ready to go shoot a bus driver. Id. El-Shabazz then suggested they go "do the Pizza Shack." Id. According to Richard, El-Shabazz gave a gun to McKenzie. Id. El-Shabazz then drove Bowles and Monterey in a truck, and Richard and McKenzie rode together in a car. Id. At a corner near the Pizza Shack, McKenzie and Bowles got out of the vehicles and walked toward the restaurant. Id. at 219. As instructed by El-Shabazz, Richard circled the block to pick up McKenzie and Bowles but did not see them. Id. He found them at the house of Ed Harris, an acquaintance. Id. McKenzie then told Richard that he shot a cop. Id. Harriss wife, Loverine Harris, testified that her husband provided a change of clothes for McKenzie and Bowles. Id.

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The facts surrounding the murder are detailed in our opinions affirming ElShabazzs conviction on direct appeal, State v. Ford, 539 N.W.2d 214 (Minn. 1995), and affirming the denial of El-Shabazzs fourth petition for postconviction relief, Ford v. State (Ford II), 690 N.W.2d 706 (Minn. 2005).

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McKenzie went to Chicago after the murder.

Id.

According to Wyvonia

Williams, he became afraid for his life and admitted details of the shooting to Williams. Among the details he shared were that Sharif ordered the hit on the police officer and that El-Shabazz was in charge of carrying out the hit. Id. McKenzie also told Williams that he rode with El-Shabazz and Monterey to the Pizza Shack. Id. Other evidence admitted against El-Shabazz included a letter Bowles wrote to El-Shabazz, stating "Im not V. Lord. This breaks our link of me and you, also that statement of you giving me orders about whatever. * * * I was nowhere around you that night. [Richard] is saying these things to clear himself in the Harris killing. He doesnt know me." Id. at 220. Two weeks after Officer Haafs murder, Ed Harris was shot and killed. Id. Police believed other Vice Lords had murdered him to prevent him from leaking information about the Haaf murder. Id. On his direct appeal, El-Shabazz asserted that the district court erred by (1) impaneling an anonymous jury; (2) admitting statements made to the police; (3) admitting the hearsay testimony of Wyvonia Williams; (4) refusing to allow El-Shabazz to cross-examine a witness regarding a withdrawn plea agreement; (5) sustaining the States Batson challenge; and (6) imposing a sentence that was contrary to law. Id. at 217. He also claimed that the evidence was insufficient to support the jurys verdicts and that the prosecutor committed misconduct during closing arguments. Id. We concluded that the admission of Williams testimony was harmless error. Id. at 227. We affirmed El-Shabazzs conviction, but reversed and remanded on one of the sentencing issues. Id. at 231. The district court then sentenced El-Shabazz to consecutive sentences of life 3

imprisonment and 20 years. Ford v. State (Ford II), 690 N.W.2d 706, 708 n.1 (Minn. 2005). El-Shabazz filed two petitions for postconviction relief, but did not perfect his appeal of the courts denial of the claims presented in each petition. Id. at 708. ElShabazz filed a third petition for postconviction relief, which the postconviction court denied on March 27, 2003. Id. El-Shabazz then filed a motion to amend the third petition on November 20, 2003, and the postconviction court treated the motion as a fourth petition. Id. In it, El-Shabazz claimed that two instances of communication between the judge and jury during jury deliberations, without El-Shabazzs presence or his waiver of the right to be present, violated his right to be present. Id. at 710. The postconviction court denied relief without an evidentiary hearing, and El-Shabazz appealed the denial of both his third and fourth petitions. Id. at 708. We concluded that (1) we did not have jurisdiction over his untimely appeal from the denial of the third petition; (2) El-Shabazzs claim of error regarding the first communication between the judge and jury was procedurally barred; (3) the second communication between the judge and jury related to "housekeeping" and not substantive issues and, therefore, did not violate El-Shabazzs right to be present; and (4) the postconviction court did not err in denying relief without a hearing. Id. at 709-13. In his fifth pro se petition for postconviction relief filed July 26, 2007, El-Shabazz sought relief due to (1) ineffective assistance of counsel because his counsel waived the right for El-Shabazz to be present during the communications between the judge and jury; (2) prosecutorial misconduct in allowing perjured testimony and not disclosing 4

evidence relating to inducements provided to witnesses; and (3) two communications between the judge and jury during jury deliberations.2 On July 27, 2007, El-Shabazzs counsel submitted a supplemental petition arguing that El-Shabazz is entitled to postconviction relief in light of several of our subsequent decisions. On appeal, counsel specifically argues that our decisions in State v. Juarez, 572 N.W.2d 286 (Minn. 1997), and Townsend v. State (Townsend II), 646 N.W.2d 218 (Minn. 2002), which were decided after El-Shabazzs conviction, applied a "stricter" standard for evaluating harmless error. The postconviction court denied the petition in September 2007, concluding that the claims had all been raised and denied in previous petitions and on appeal. Nonetheless, the court considered whether El-Shabazzs earlier claim based on Williams testimony merited relief under the stricter Juarez/Townsend II harmless error standard and concluded that the erroneous admission of the testimony was still harmless under that standard. El-Shabazz appealed. We affirm.

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El-Shabazzs argument that two communications between the judge and jury during jury deliberations entitle him to postconviction relief is a claim we considered and rejected on his appeal from the denial of his fourth postconviction petition. Ford II, 690 N.W.2d at 710-13. Because his argument for ineffective assistance of counsel is based on his counsels waiver of El-Shabazzs right to be present at a judge-jury communication, an argument that is both procedurally barred and meritless, his claim for ineffective assistance of counsel also fails. See Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998) (stating that a petitioner is entitled to a hearing to develop the facts supporting his ineffective assistance claims only if he alleged facts that would "affirmatively show that his attorneys representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different").

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Under Minn. Stat.

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