Roulo v. Schnell et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SEAN WILLIAM ROULO,
Petitioner,
v.
PAUL SCHNELL, Commissioner,
Minnesota Department of Corrections
Respondent.
Case No. 24-cv-4459 (ECT/JFD)
REPORT AND
RECOMMENDATION
This matter is before the Court on Mr. Sean William Roulo’s Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (Pet., Dkt. No. 1.) The case has been referred
to the undersigned United States Magistrate Judge for a Report and Recommendation
pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. Mr. Roulo
challenges his convictions for criminal sexual conduct. See id.; State v. Roulo, Case No.
A21-1223, 2023 WL 126425, at *1 (Minn. Ct. App. Jan. 9, 2023), review denied (Minn.
Apr. 26, 2023). Mr. Roulo asserts that his state criminal conviction violated protections
afforded by the Fifth and Fourteenth Amendments of the U.S. Constitution. (Pet’r’s Mem.
of Law in Supp. 3–11, 21, Dkt. No. 2.)1 The undersigned recommends that Mr. Roulo’s
petition be denied because he has not exhausted available state remedies for the federal
constitutional violations he now alleges.
1 The Court uses the page numbers assigned by the PACER system, which are on the top
of each docket page.
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BACKGROUND
I. 	State Trial and Appellate Proceedings
In July 2020, Mr. Roulo was charged in state court with two counts of first-degree
criminal sexual conduct (“CSC”), one count of second-degree CSC, and one count of
fourth-degree CSC, based on reports by two adult stepdaughters that he had sexually
abused them when they were minors. Roulo, 2023 WL 126425, at *1. The State alleged in
the first count of first-degree CSC that Mr. Roulo engaged in sexual penetration of Victim
1, S.H., between May 2006 and May 2008, when she was between 10 and 12 years of age,
in violation of Minn. Stat. § 609.342, subd. 1(g). Id. In the second count, also of first-degree
CSC, the State alleged that Mr. Roulo engaged in multiple acts of sexual penetration of
S.H. between May 2006 and May 2011, when she was between 10 and 15 years of age, in
violation of Minn. Stat. § 609.342, subd. 1(h)(iii). Id. The charge of second-degree CSC
was based on allegations that Mr. Roulo engaged in multiple acts of sexual contact with
Victim 2, B.H., between May 2001 and May 2015, when she was between 2 and 15 years
of age, in violation of Minn. Stat. § 609.343, subd. 1(h)(iii). Id. The charge of fourth-degree
CSC was based on allegations that Mr. Roulo engaged in multiple acts of sexual contact
with B.H. between May 2015 and May 2017, when she was between 15 and 17 years of
age, in violation of Minn. Stat. § 609.345, subd. 1(g)(iii) (2004). Id. Before Mr. Roulo's
initial appearance, the prosecution amended the complaint, changing the date range for
count three to start in May 2007 rather than May 2001. Id.
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At the beginning of Mr. Roulo’s trial in April 2021, the prosecution moved to amend
the complaint a second time, “changing the date ranges for counts [two] and [three] and by
alleging second-degree [CSC], instead of fourth-degree [CSC], in count [four].” Id. After
granting the motion concerning counts two and three, the trial court denied the motion as
it related to count four, finding “that the second-degree charge would [be meaningfully
different in character] than the fourth-degree charge.” Id. The prosecution decided to
“withdraw the amendment with respect to count [three] and to dismiss count [four].” Id.
S.H.’s trial testimony supported the allegation that Mr. Roulo engaged in sexual
contact with her but did not support the allegation that Mr. Roulo had sexually penetrated
her. See id. at *2. As a result, the prosecution again moved to amend the complaint, alleging
“second-degree [CSC], not first-degree [CSC], in counts [one] and [two], on the ground
that such an amendment would conform to S.H.’s testimony.” Id. The prosecution also
moved to amend the complaint to “allege two counts, instead of one count, of second-
degree [CSC] with respect to B.H.” Id. Mr. Roulo opposed the motion on the ground that
amendment would require a change of plans for examining the remaining witnesses and
making 	closing 	argument. 	Id. 	Over 	Mr. 	Roulo’s 	objection, 	the 	court 	granted 	the
prosecution’s motion to amend the complaint. Id. A jury found Mr. Roulo guilty on the
first three counts of the amended complaint and not guilty of the charge in count four. Id.
Mr. Roulo appealed his convictions to the Minnesota Court of Appeals. (Statement
of Appellant’s Case at 8, Dkt. No. 12-2.) In February 2022, Mr. Roulo’s attorney filed a
brief on his behalf. (Id.) After his attorney filed that brief, Mr. Roulo attempted to file a
supplemental pro se brief. Mr. Roulo took extensive time to complete his arguments, filing
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five motions for extension of time, the first four of which were granted. See Roulo, 2023
WL 126425 at *2. After the denial of the fifth motion, the Court of Appeals ordered that
no additional briefing would be considered and the issues on appeal would be those
presented by Mr. Roulo’s attorney. Id. While Mr. Roulo did eventually file a partial pro se
reply brief with the Court of Appeals, (see Dkt. No. 12-20), that court did not consider it
because the brief was not timely before it. Roulo, 2023 WL 126425 at *2. The Minnesota
Court of Appeals affirmed the trial court’s decision, concluding that “the district court did
not err by granting the state's motion to amend the complaint during trial … [and] that the
district court did not err by imposing two sentences on two counts of criminal sexual
conduct involving the same victim.” Id. at *1.
Mr. Roulo also sought review from the Minnesota Supreme Court and the United
States Supreme Court. (Appellant's Suppl. Pet. for Further Review 1, Dkt. No. 12-33;
Notice Accepting Pet. for Writ of Cert. 1, Dkt. No 12-39.) Both declined review. (Order
Denying Pet. for Further Review 1, Dkt. No 12-37; Notice Denying Pet. for Writ of Cert.
1, Dkt. No. 12-40.) Mr. Roulo now seeks habeas corpus relief on the grounds that the trial
court’s decision to grant the prosecution’s motion to amend the complaint for a third time
violated his rights under the Fifth and Fourteenth Amendments of the United States
Constitution. (Pet. 6, 11, 17, Dkt. No. 1.)
II. 	Mr. Roulo’s Federal Habeas Petition
After being denied the relief he sought on appeal from both the Minnesota Supreme
Court and the United States Supreme Court, Mr. Roulo filed this petition for habeas corpus,
listing eight grounds for relief. (See Pet., Dkt. No. 1.) Concurrent with his original petition,
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Mr. Roulo asked that his petition be held in abeyance, to “allow[] him time to fully plead
all 	constitutional 	issues 	and 	exhaust 	unexhausted 	claims 	in 	state 	habeas 	corpus
proceedings.” (Mot. to Hold Pet. in Abeyance 1, Dkt. No. 3.)2 This Court denied Mr.
Roulo’s motion to hold his petition in abeyance and left Mr. Roulo with the choice of
dismissing his mixed habeas petition voluntarily or, alternatively, voluntarily dismissing
those claims that Mr. Roulo had not fairly presented to the Minnesota state appellate courts
and proceeding only with those claims that he did fairly present. (Mar. 27, 2025 Order 4,
Dkt. No. 16.)
Mr. Roulo elected to proceed only with those claims that were fairly presented to
the state courts. (Letter to Magistrate Judge 2-3, Dkt. No 24.) In making that decision, Mr.
Roulo voluntarily dismissed Grounds 3, 5, 6, 7, and 8. (Id. at ¶5). Accordingly, the Court
limits its analysis here to Grounds 1, 2, and 4, which are:
• 	Ground 1: “The trial court's mid-trial action effecting the dismissal of first-degree
charges in counts I & II of the Second Amended Complaint in effect when jeopardy
attached at trial constituted an acquittal on the merits under the U.S. Supreme
Court's rulings in the Martin Linen [sic] case and numerous other Supreme Court
cases affirming the scope and protections guaranteed in the 5th Amendment Double
Jeopardy Clause.” (Pet. 6, Dkt. No. 1.)
2 This motion was likely precipitated by the fact that Mr. Roulo “waited until the last
possible day to file his federal habeas petition.” (March 27, 2025 Order 4, Dkt. No. 16.)
The Court denied the motion because “Mr. Roulo ha[d] already had an unusually long time
in which to formulate ideas as to how to attack his conviction on postconviction review.
… And after all this time, Mr. Roulo still ha[d] not filed a petition for postconviction relief
in the state courts.” (Id.)
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• 	Ground 2: “Petitioner's conviction on Count III of the Third Amended Complaint
was secured by the State of Minnesota in violation of Petitioner's 14th Amendment
right to procedural due process.” (Id. at 11.)
• 	Ground 4: “Petitioner's conviction on Count I & II of the Third Amended Complaint
was Secured by the State of Minnesota in violation of Petitioner's 14th Amendment
right to procedural due process.” (Id. at 17.)
Although Mr. Roulo now frames these grounds in terms of the United States
constitution, this Court cannot address them because Mr. Roulo based his state appeals on
these claims on alleged violations of Minnesota state law, without invoking federal law. .
See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (holding that a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United
States). Though he raised these challenges in his state appeals, making them appear to have
been exhausted at the state level, review of the record shows that they, like the grounds
already dismissed by Mr. Roulo, have not been fairly presented to the state courts for
determination on issues of federal law.
III. 	Legal Standards
The governing standard for federal courts’ review of state convictions allows for
habeas relief only when and if the reviewing court determines that the state court’s decision
was either “contrary to” or an “unreasonable application” of law “clearly established” in
U.S. Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Before the Court can establish
whether the state court decision violates U.S. Supreme Court precedent, however, the issue
must have been “fairly presented” to the state courts. Picard v. Conner, 404 U.S. 270, 275
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(1971). The fair presentation requirement only allows a federal court to review a state
conviction where a petitioner raises “the same legal theories and factual bases to the state
courts.” Pollard v. Armontrout, 16 F.3d 295, 297 (8 th Cir. 1994). A petitioner must, in his
appeal within the state judiciary, make an “explicit citation to the [United States]
Constitution or to a federal [Supreme Court] case.” McDougald v. Lockhart, 942 F.2d 508,
510 (8th Cir. 1991).
In Picard, the Supreme Court explained that the exhaustion doctrine aims to prevent
conflict between state and federal courts. Picard v. Connor, 404 U.S. 270, 275 (1971).
There, the Court noted: “it is not sufficient merely that the federal habeas applicant has
been through the state courts. The [exhaustion doctrine] would serve no purpose if it could
be satisfied by raising one claim in the state courts and another in the federal courts.” Id.
at 275–76. The Supreme Court thus concluded that state courts must first have the
“opportunity to hear the claim sought to be vindicated in a federal habeas proceeding.” Id.
A federal habeas petition is not a vehicle to raise new arguments that a petitioner did not
present to state courts. Picard, 404 U.S. 270, 276–77.
IV. 	Discussion
Mr. Roulo’s petition for habeas relief rests on claims that have not been exhausted
in Minnesota state courts, and thus, this Court is unable to consider Mr. Roulo’s petition.
“An application for … habeas corpus … shall not be granted unless … the applicant has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To
exhaust remedies available in state courts, an applicant must fairly present federal claims
to those courts. Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996).
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Here, the Minnesota Court of Appeals found that Mr. Roulo’s appeal properly raised
two issues. Roulo, 2023 WL 126425, at *2. First, Mr. Roulo fairly presented the argument
that the Minnesota Rules of Criminal Procedure prevented the state from amending the
complaint mid-trial. Id; see also Minn. R. Crim. P. 17.05. Second, Mr. Roulo fairly
presented argument that the trial court erred by imposing two sentences, which Mr. Roulo
alleged arose from the same behavioral conduct in violation of Minn. Stat. § 609.035, subd.
1 (2004). Roulo, 2023 WL 126425, at *4. Mr. Roulo contends that these two issues,
properly raised with the Minnesota Court of Appeals, share an underlying factual basis
with the arguments Mr. Roulo now raises that the trial proceedings violated the Fifth and
Fourteenth Amendments of the U.S. Constitution, an issue argues he properly raised to
both the Minnesota Court of Appeals and Minnesota Supreme Court. (Pet’r’s Mem. of Law
in Supp. 3–11, 21, Dkt. No. 2.)
Neither Mr. Roulo’s February 2022 brief in support of his appeal nor the Court of
Appeals decision refers to federal law or the United States Constitution. See Appellant’s
Br., Dkt. No. 12-2; Roulo, 2023 WL 126425. Mr. Roulo’s attorney did cite one Minnesota
case, State v. Gisege, 561 N.W.2d 152 (Minn. 1997), which references a United States
Supreme Court case for the general principle that “a defendant cannot be held to answer a
charge not contained in the indictment brought against him.” (See Appellant’s Br. 17, Dkt.
No. 12-2 (citing Gisege, 561 N.W.2d 156 (Minn. 1997) (quoting Schmuck v. United States,
489 U.S. 705, 717 (1989))).) This, however, is not enough to conclude that Mr. Roulo
raised the federal constitutional issues in this case to the state appellate court. His citation
to Gisege is merely a citation to a state case discussing state criminal procedural law, which
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uses a Supreme Court decision as additional support for a general proposition of “an
ancient doctrine of both the common law and of our Constitution” without a mention of a
specific provision of the federal constitution. Id.
The only legal issues raised in this petition which were also before the Minnesota
Court of Appeals are issues of state procedural law, not federal law. While Mr. Roulo did
challenge the outcomes of those legal determinations in state court, he did not frame those
challenges in terms of federal law, so to the extent those challenges were “exhausted” (in
the colloquial sense) they were exhausted on questions of state law, which federal courts
cannot address. They were not exhausted as that term is defined in federal habeas law.
Accordingly, the Court concludes that Mr. Roulo did not exhaust his state court remedies
for the federal constitutional violations he alleges, requiring denial of his petition.
RECOMMENDATION
Accordingly, based on the foregoing and all of the files, records, and proceedings
herein, IT IS HEREBY RECOMMENDED THAT:
1. 	Mr. Sean Roulo’s Petition (Dkt. No. 1) be DENIED; and
2. 	This matter be DISMISSED.
Date: May 1, 2026 	s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
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Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local Rule
72.2(b)(2). All objections and responses must comply with the word or line limits set forth
in Local Rule 72.2(c).
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