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Rivera v. Smith

United States District Court, Eighth Circuit

October 4, 2013

ALVETO RIVERA, Petitioner,
v.
MICHELLE SMITH, Warden, Respondent.

REPORT AND RECOMMENDATION

FRANKLIN L. NOEL, Magistrate Judge.

This case is before the undersigned United States Magistrate Judge on Petitioner's application for habeas corpus relief under 28 U.S.C. § 2254. (Docket No. 1.) The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court will recommend that Petitioner's habeas corpus petition be summarily dismissed for lack of jurisdiction, pursuant to Rule 4 of The Rules Governing Section 2254 Cases In The United States District Courts.[1]

I. BACKGROUND

In 2008, a criminal complaint was filed against Petitioner in the state district court for Hennepin County, Minnesota. He was charged with two counts of first degree criminal sexual conduct for abusing his girlfriend's minor children. In 2009, Petitioner pled guilty to one of the charges, and the other charge was dismissed. He later tried to withdraw his guilty plea, but that request was denied, and he was sentenced to 270 months in prison. Petitioner is presently serving his sentence at the Minnesota Correctional Facility in Stillwater, Minnesota.

After Petitioner was convicted and sentenced, he filed a direct appeal, claiming that he should have been allowed to withdraw his guilty plea. That claim was rejected by the Minnesota Court of Appeals, and Petitioner's conviction and sentence were affirmed. State v. Rivera, No. A09-1023, (Minn.App. 2010), 2010 WL 1657400 (unpublished opinion). The Minnesota Supreme Court denied Petitioner's request for further review on June 29, 2010. Id.

Petitioner then filed a habeas corpus petition here in the U.S. District Court for the District of Minnesota, and the matter was referred to this Court for a Report and Recommendation, ("R&R"). The Court found that some of Petitioner's habeas corpus claims had been procedurally defaulted, and all of his remaining claims were without merit. It was therefore recommended that Petitioner's federal habeas corpus petition be dismissed with prejudice. Rivera v. King, Civil No. 10-3954 (RHK/FLN), (R&R dated August 12, 2011, [Docket No. 13]), [hereafter "Rivera I"]. Petitioner filed objections to the R&R, but those objections were overruled, and the recommendation to dismiss the case with prejudice was adopted by the presiding District Court Judge. Rivera I was dismissed on September 23, 2011. Id., [Docket No. 18].[2] The District Court Judge declined to grant Petitioner a Certificate of Appealability, (id.), the Eighth Circuit Court of Appeals also declined to grant a Certificate of Appealability, (id., [Docket No. 24]), and the United States Supreme Court denied Petitioner's subsequent petition for a writ of certiorari, (id., [Docket No. 28]).

After Rivera I became final, Petitioner filed a post-conviction motion in the state trial court. Petitioner's post-conviction motion was denied, because it was found to be untimely. Petitioner appealed that ruling, but the Minnesota Court of Appeals agreed that Petitioner's post-conviction motion was untimely, and further found that the claims presented in the motion were procedurally defaulted under Minnesota's state procedural rules. Rivera v. State, No. A12-2081 (Minn.App. 2013), 2013 WL 1943191 (unpublished opinion). Petitioner's subsequent petition for further review was denied by the Minnesota Supreme Court on July 16, 2013. Id.

Petitioner filed his current habeas corpus petition on September 26, 2013. The petition lists five grounds for relief, which Petitioner has summarized as follows:

Ground One: "POST CONVICTION JUDGE COMMITTED JUDICIAL MISCONDUCT WHERE SHE RULE ON THE PETITIONER POST CONVICTION RELIEF PETITION WHERE SHE WAS DISQUALIFICATION TO RULE ON THE PETITRIONER [SIC] POST CONVICTION RELIEF."
Ground Two: "THE DISTRICT COURT ABUSE ITS DISCRETION WHERE A DISQUALIFY JUDGE COMMITTED JUDICIAL MISCONDUCT WHERE SHE DID NOT ALLOW THE POST CONVICTION RELIEF IN AS NEWLY DISCOVERY EVIDENCE WHERE THE PETITIONER IS ENTITLED TO FILE A POST CONVICTION RELIEF UNDER NEWLY DISCOVERY EVIDENCE BECAUSE HE IS ENTITLED TO BY LAW IN THE STATE OF MINNESOTA."
Ground Three: "THE DISTRICT COURT AND PROSECUTOR HAS ERROR IN BREACHED THE TERMS OF A PLEA BARGAIN AGREEMENT PREVIOUSLY ENTERED INTO WITH A CRIMINAL PETITIONER."
Ground Four: "THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHERE HIS FAILURE TO DISCLOSE EVIDENCE THAT IS FAVORABLE TO THE DEFENSE OR PETITIONER IN VIOLATION OF BRADY."
Ground Five: "PETITIONER SHOULD RECEIVE A NEW TRIAL WHERE THE TOTALITY OF THE UNPROFESSIONAL ERRORS AND DEFICIENT PERFORMANCE DEFENSE SO AS TO DEPRIVE PETITIONER OF HIS SIXTH AMENDMEN [SIC] RIGHT TO ...

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