United States District Court, D. Minnesota
Charles L. Hawkins, 150 South Fifth Street, Suite 3260, Minneapolis, Minnesota 55402, for Petitioner.
Matthew Frank, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1800, Saint Paul, Minnesota 55101; Nicholas J. Vivian and Thomas J. Weidner, Eckberg Lammers Briggs Wolf & Vierling, PLLP 1809 Northwestern Avenue, Suite 110, Stillwater, Minnesota 55082, for Respondents.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Petitioner's Objections [Doc. No. 9] to United States Magistrate Judge Jeffrey J. Keyes's January 15, 2014, Report and Recommendation ("R&R") [Doc. No. 8]. For the reasons that follow, the Court overrules Petitioner's Objections and adopts the R&R in its entirety.
The Magistrate Judge's R&R thoroughly documents the factual and procedural background of the case, which is incorporated here by reference. On December 16, 2013, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Pet. for Writ of Habeas Corpus [Doc. No. 1].) This matter was referred to Magistrate Judge Keyes for preliminary review, under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court. (Dec. 20, 2013, Order at 1 [Doc. No. 5].) The Magistrate Judge ordered Petitioner to show cause why this action should not be dismissed by reason of the "in custody" requirement of 28 U.S.C. § 2254. ( Id. at 3.) Petitioner responded on January 8, 2014. (Resp. to Dec. 20, 2013 Order to Show Cause [Doc. No. 6].)
On January 15, 2014, the Magistrate Judge issued the R&R at issue, recommending that: (1) Petitioner's application for a writ of habeas corpus [Doc. No. 1] be denied; (2) this action be dismissed for lack of jurisdiction; and (3) Petitioner should not be granted a Certificate of Appealability. (Jan. 15, 2014, R&R at 11 [Doc. No. 8].) In short, the Magistrate Judge reasoned that Petitioner could not challenge his 2011 disorderly conduct conviction in the present federal habeas corpus proceeding, because his sentence in that case had been completed fully, and Petitioner was not "in custody" under that conviction when he filed this action. ( Id. at 10.) Because the statutory "in custody" requirement was not met, the Magistrate Judge recommended that the instant petition be summarily dismissed for lack of jurisdiction. (Id.) The Magistrate Judge also declined to issue a Certificate of Appealability, finding it "highly unlikely" that any court would decide Petitioner's claims any differently and Petitioner had not identified anything that warranted appellate review. ( Id. at 10-11.)
On January 31, 2014, Petitioner filed his objections to the R&R. (Objections to Magistrate Judge's Report and Recommendation [Doc. No. 9].)
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). Ordinarily, the district judge relies on the record of proceedings before the magistrate judge. D.Minn. LR 72.2(b)(3).
Petitioner objects that "the Magistrate did not consider the fact that the date on which the impediment which prevented Mr. Nielsen from filing his § 2254 Petition for Habeas Corpus Relief wasn't removed until after he was out of custody." (Objections at 2 [Doc. No. 9].) Petitioner claims that on June 26, 2012, he discovered a Brady violation during discovery in a civil lawsuit, by which time his probation already had expired on March 30, 2012. (Id.) Petitioner alleges that the Brady material was received by the prosecutor on March 21, 2011, but was "intentionally suppressed" from Petitioner. (Id.) Citing 28 U.S.C. § 2244(d)(1)(B) and ...