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Rivera v. Smith

United States District Court, Eighth Circuit

October 30, 2013

Alveto Rivera, Petitioner,
Michelle Smith, Warden, Respondent.

Alveto Rivera, Bayport, Minnesota 55003, pro se Petitioner.

Jean E. Burdorf, Hennepin County Attorney's Office, 300 South Sixth Street, Suite A-2000, Minneapolis, Minnesota 55487; Matthew Frank and James B. Early, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1800, Saint Paul, Minnesota 55101, for Respondent.




This matter is before the undersigned United States District Court Judge for consideration of Petitioner Alveto Rivera's Objections [Doc. No. 11] to United States Magistrate Judge Franklin L. Noel's October 4, 2013, Report and Recommendation ("R&R") [Doc. No. 9]. The Magistrate Judge recommended that: (1) Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 [Doc. No. 1] be denied; (2) Petitioner's application for leave to proceed in forma pauperis [Doc. No. 3] be denied; (3) Petitioner's motion for appointment of counsel [Doc. No. 4] be denied; (4) this action be summarily dismissed without prejudice for lack of jurisdiction; and (5) Petitioner should not be granted a Certificate of Appealability. Also before the Court is Petitioner's motion to disqualify Magistrate Judge Noel in this case [Doc. No. 8]. For the reasons set forth below, Petitioner's objections are overruled and the Court adopts the R&R. Petitioner's motion to disqualify Magistrate Judge Noel is denied as well.


The Magistrate Judge's R&R thoroughly documents the factual and procedural background of Petitioner's case, and the Court incorporates it here by reference. Briefly stated, Petitioner is a Minnesota state prison inmate who is currently incarcerated at the Minnesota Correctional Facility in Stillwater. After Petitioner was convicted and sentenced, he filed a direct appeal, claiming that he should have been allowed to withdraw his guilty plea. The Minnesota Court of Appeals rejected Petitioner's claim and affirmed his conviction and sentence. State v. Rivera, No. A09-1023, 2010 WL 1657400, at *5 (Minn.Ct.App. Apr. 27, 2010). The Minnesota Supreme Court then denied Petitioner's request for further review.

On September 16, 2010, Petitioner filed a habeas corpus petition in the United States District Court for the District of Minnesota. (Pet. for Writ of Habeas Corpus in Case No. 10-cv-3954 (RHK/FLN) [Doc. No. 1].) The Magistrate Judge recommended that the habeas corpus petition be dismissed with prejudice. Rivera v. King ("Rivera I"), No. 10-3954, 2011 WL 4458729, at *1 (D. Minn. Aug. 12, 2011). The Court adopted the R&R and dismissed Rivera I with prejudice. Rivera v. King, No. 10-3954, 2011 WL 4436149, at *1 (D. Minn. Sept. 23, 2011).

Petitioner then filed a post-conviction motion in the state trial court, which was denied for untimeliness. After Petitioner appealed that ruling, the Minnesota Court of Appeals found that the post-conviction motion was untimely and the claims presented were procedurally defaulted. Rivera v. State of Minnesota, No. A12-2081, 2013 WL 1943191, at *2 (Minn.Ct.App. 2013). On July 16, 2013, the Minnesota Supreme Court denied Petitioner's subsequent petition for further review. Id.

On September 26, 2013, Petitioner filed his current habeas corpus petition. (Pet. for Writ of Habeas Corpus [Doc. No. 1].) On October 7, 2013, the Magistrate Judge found that none of Petitioner's current habeas corpus claims can be addressed on the merits, because Petitioner filed a "second or successive petition" that must be summarily dismissed for lack of jurisdiction. (Report and Recommendation at 4 [Doc. No. 9].) Also on October 7, 2013, Petitioner moved to disqualify the Magistrate Judge in this case. (Mot. to Disqualify Magistrate Judge [Doc. No. 8].) On October 18, 2013, Petitioner objected to the Magistrate Judge's R&R. (Objections [Doc. No. 11].)


A. Standard of Review

A party "may file and serve specific written objections to a magistrate judge's proposed findings and recommendations." D.Minn. LR 72.2(b)(1). The district court will review de novo those portions of the R&R to which an objection is made, and it "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3); D.Minn. LR 72.2(b)(3). ...

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