This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Cesar De La Garza, petitioner,


State of Minnesota,


Filed July 18, 2006


Minge, Judge

Hon. John C. Lindstrom

Kandiyohi County District Court

File No. K3-00-1015



Cesar De La Garza, Oak Park Heights M.C.F., 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Boyd Beccue, Kandiyohi County Attorney, C.J. Crowell, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            In this appeal from denial of postconviction relief, appellant challenges the district court’s determination that his pretrial detention did not violate his due process rights and right to counsel.  We affirm.


            Appellant Cesar de la Garza was convicted of second-degree murder and sentenced to 326 months.  He appealed and this court affirmed.  State v. de la Garza, No. C9-02-877 (Minn. App. June 10, 2003), review denied (Minn. Aug. 19, 2003).

            De la Garza’s trial began on January 28, 2002.  Prior to and during the trial, de la Garza was detained at the Kandiyohi County Law Enforcement Center (KCLEC).  On January 6, 2002, de la Garza and four other inmates destroyed a television and two microwave ovens, and set off the sprinkler system, causing substantial damage.  Because of this destructive behavior, KCLEC officers put de la Garza in disciplinary segregation.  Usually, an inmate in segregation at KCLEC receives an hour out of his cell each day, but if that inmate presents a security or safety risk, KCLEC officers can further restrict daily out-of-cell time.

            Initially, de la Garza received 15 minutes of daily out-of-cell time.  With increases for good behavior, by January 25 de la Garza was allowed 90 minutes of daily out-of-cell time.  While out of his cell, de la Garza was allowed to shower, read his mail and make telephone calls.  The head jailer at KCLEC testified that if de la Garza had been speaking with his attorney on the telephone, the officers would not have cut him off, even if the conversation exceeded de la Garza’s permitted out-of-cell time.  In addition, because of safety concerns and vandalism, detainees in disciplinary segregation are initially allowed only a Bible, a book, a select amount of mail, and bed sheets in the cell.  Although at first de la Garza was not allowed to bring his legal papers into his cell, beginning on January 25 he could bring in half of his legal papers at one time.

            On January 28, voir dire began.  On that day, de la Garza’s attorney told him to review some newspaper articles about his case and decide whether de la Garza would like to request a change of venue.  But, because de la Garza was not allowed to use the telephone at night, he could not indicate to his attorney his preference to move for a change of venue until the next morning.  On January 29, when de la Garza discussed the motion with his attorney, he was told that it was too late to demand change of venue because the attorney did not have enough time to prepare a supporting memorandum.  De la Garza was subsequently convicted.

            De la Garza filed a petition for postconviction relief, arguing that the state interfered with his right to counsel and deprived him of due process.  The district court denied relief and de la Garza appeals.


            A postconviction court’s decision is reviewed “only to determine whether sufficient evidence supports the court’s findings.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  This court will reverse a postconviction court’s determination only for an abuse of discretion.  Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).  But, in the appeal of postconviction proceedings, this court reviews questions of law de novo.  State v. Blom, 682 N.W.2d 578, 623-24 (Minn. 2004).

            De la Garza brings two issues before this court.  First, de la Garza argues that the district court erred in determining that the state did not violate his due process rights as a pretrial detainee.  Second, de la Garza argues the district court erred in determining that the state did not interfere with de la Garza’s right to counsel.  Because the factual basis for these issues is intertwined, we will consider the claims together.

            A pretrial detainee is someone whom the state has probable cause to believe committed a crime.  Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989).  The confinement conditions for such individuals are subject to due process analysis because, unlike convicted prisoners, the state has no inherent right to punish them.  Boswell v. County of Sherburne, 849 F.2d 1117, 1120-21 (8th Cir. 1988).  “Constitutionally infirm practices are those that are punitive in intent, those that are not rationally related to a legitimate purpose or those that are rationally related but are excessive in light of their purpose.”  Johnson-El, 878 F.2d at 1048.  The test is whether the state action in question demonstrated deliberate indifference to the constitutional rights of pretrial detainees.  Goldberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005).

            In addition, “[t]he Sixth Amendment guarantees the fundamental right of an accused to be represented by counsel.”  Cooper v. State, 565 N.W.2d 27, 30 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  The state violates the Sixth Amendment when it prevents the effective assistance of counsel.  Geders v. United States, 425 U.S. 80, 91, 96 S. Ct. 1330, 1337 (1976) (holding that Sixth Amendment is violated where a court order prevented criminal defendant from consulting with attorney during 17-hour overnight recess between defendant’s direct and cross examinations).  “To establish a sixth amendment violation, a criminal defendant must show two things: first, that the government knowingly intruded into the attorney-client relationship; and second, that the intrusion demonstrably prejudiced the defendant, or created a substantial threat of prejudice.”  United States v. Singer, 785 F.2d 228, 234 (8th Cir. 1986) (citation omitted).  The Sixth Amendment exists to ensure fairness in the adversary process, but such concerns must be balanced against the state’s interest in prosecuting criminal conduct.  Id. at 234, 237 (noting that indictment against defendant need not be dismissed where government procured and reviewed confidential attorney-client file).

            Imperfect communication between a criminal defendant and trial counsel does not give rise to a presumption of prejudice.  Cooper, 565 N.W.2d at 31.  Only where a criminal defendant is denied counsel at a critical stage in the proceeding can prejudice be presumed.  Id. (citing United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984)).  Such cases are rare.  Cronic, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n.26; see State v. Rainer, 411 N.W.2d 490, 494-95 (Minn. 1987) (finding that presence of state investigator when defense firearms expert tested the alleged murder weapon did not violate defendant’s Sixth Amendment rights); Gibson v. State, 569 N.W.2d 421, 424 (Minn. App. 1997) (finding that prohibition on attorney contact with jurors regarding potential juror misconduct did not violate defendant’s Sixth Amendment rights), review denied (Minn. Oct. 31, 1997).

            Here, de la Garza entered disciplinary segregation because of his destructive behavior.  While segregated, he had a minimum of 15 minutes of telephone access per day to contact his attorney.  He admitted that no one interfered with this access.  The only specific point at which de la Garza claims his access was limited was the evening of January 28, when he claims that had he wanted to contact his attorney about a change of venue motion, he would have been denied that opportunity.  However, the record does not reflect that de la Garza actually made such a request, that his attorney was even available, or if available, that he could have prepared the necessary memorandum.  In addition, de la Garza admitted that no one interfered with his access to his attorney during the day during trial.

            Moreover, one of the jailers testified that there were no restrictions on receiving telephone calls from attorneys.  Therefore, had de la Garza’s attorney called him the evening of January 28, de la Garza would have been able to use the telephone to discuss strategy with his attorney.  Except for the change-of-venue issue, de la Garza does not indicate any other issue that he was not able to address with his attorney due to phone limits imposed by KCLEC.  The district court in the postconviction proceeding addressed the merits of the change-of-venue issue and concluded that the trial counsel “scrupulously examined the prospective jurors concerning their awareness of pretrial publicity, and in the end, found a sufficient number of jurors who were neither exposed to excessive pretrial publicity nor biased against the petitioner because his attorney was mayor of New London.”  There is no evidence that the state knowingly interfered with the attorney-client relationship or that de la Garza was prejudiced.

            In addition, while de la Garza’s confinement initially deprived him of his legal papers, he was eventually given access to those papers, half at a time due to volume.  A jailer testified that when a detainee is put into disciplinary segregation there are concerns that the detainee might try to use paper either to start a fire or to plug the plumbing in the cell and cause water pipes to burst.  Thus, KCLEC restricts the amount of paper that detainees may bring into their cells at one time.  De la Garza’s earlier destructive behavior made these concerns and limits especially relevant to his confinement.  This policy does not appear punitive or excessive, and is rationally related to a legitimate safety goal.  See Johnson-El, 878 F.2d at 1048.

            Therefore, we recognize that de la Garza’s telephone privileges and access to legal materials were restricted during trial and agree that this is unusual and potentially prejudicial.  However, significant justification existed for these limits and based on the record, we conclude that these limits did not deny de la Garza procedural due process or unduly interfere with or prejudice his right to counsel and a fair trial.  The district court did not err in denying postconviction relief on these claims.