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Green v. Warden of Rush City McF

United States District Court, D. Minnesota

May 15, 2014

Brett Thomas Green, Petitioner,
Warden of Rush City MCF, Respondent.

Brett Thomas Green, pro se.


ANN D. MONTGOMERY, District Judge.


This matter is before the undersigned United States District Judge for a ruling on Petitioner Brett Thomas Green's Objections [Docket No. 19] ("Obj.") to Magistrate Judge Steven E. Rau's March 26, 2014 Report and Recommendation [Docket No. 16] ("R&R"), and on Petitioner's Motion of Reconsideration on Writ of Habeas Corpus ("Motion of Reconsideration") [Docket No. 21].

In the R&R, Judge Rau recommends denying Petitioner's amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition") and summarily dismissing this case without prejudice based on Petitioner's failure to exhaust all available state court remedies for the claims he seeks to raise in federal court. As a result, Judge Rau also recommends denying Petitioner's application for leave to proceed in forma pauperis [Docket No. 10], his Motion for Immediate Relief [Docket No. 13], and his Motion to Proceed with Writ of Habeas Corpus [Docket No. 15].

Petitioner has filed Objections to the R&R, and has also filed a Motion of Reconsideration. After a de novo review of the record, and for the reasons stated below, Petitioner's Objections are overruled, Judge Rau's R&R is adopted, and Petitioner's Motion of Reconsideration is denied.


Petitioner is a prisoner at the Minnesota Correctional Facility in Rush City, Minnesota. He has been convicted twice in Minnesota state district court for criminal sexual conduct. The first conviction resulted from a guilty plea in 2007 in a case identified as No. 30CR-07-71 ("First Case"). Petitioner did not appeal this conviction. The second conviction resulted from an August 2010 jury verdict in a case identified as No. 30CR-08-1174 ("Second Case"). Petitioner appealed the second conviction, and the Minnesota Court of Appeals affirmed the conviction on April 30, 2012. State v. Green, No. A11-850, 2012 WL 1470164 (Minn.Ct.App. Apr. 30, 2012).

After his conviction was affirmed, Petitioner filed a series of post-conviction motions in state district court. Amended Petition [Docket No. 9] ¶¶ 8-12. Petitioner's state court proceedings remain active and pending in the state district court and in the Minnesota Court of Appeals. For example, in Petitioner's First Case, the district court granted Petitioner a courtappointed attorney in March 2014, and conducted a motion hearing in late April, 2014.[1] In the Second Case, Petitioner appealed a March 13, 2014 post-conviction order entered by the district court. See Green v. State, Case No. A14-0613 (Minn.Ct.App. 2014). The appeal is in the briefing stage at the Minnesota Court of Appeals.[2]

In addition to his post-conviction motions in state court, Petitioner also filed a federal habeas corpus petition in this Court challenging both his first and second state convictions on four grounds. The R&R recommends that the Petition be denied and this action dismissed because Petitioner has failed to fully exhaust all available state court remedies and therefore does not satisfy the standards for federal habeas corpus relief set forth in 28 U.S.C. § 2254. In recommending denial, Judge Rau recognized that Petitioner had applied for post-conviction relief in state court, and determined the state courts had not had the opportunity to resolve Petitioner's constitutional claims through the state court's established appellate review process. R&R at 3-4.

After the R&R was issued, Petitioner attempted to file a writ of habeas corpus in the Minnesota Supreme Court, stating "the U.S. District Courts have ordered me to appeal to you." Ex. To Mot. Recons. at 3. The Minnesota Supreme Court Commissioner declined to file Petitioner's papers and returned them to Petitioner with a letter explaining that "to the extent you seek postconviction relief, you must file that petition first with the [state] district court." Id . at 1. The Commissioner further explained that because the petition was not an appeal from a final order or entry of judgment by the district court, the state appellate courts had no jurisdiction over the petition. Id.

Petitioner objects to the R&R, arguing that pursuing relief in the state courts would be both "ineffective" and "unavailable" due to his failure to timely seek relief from his convictions. Petitioner contends his claims are procedurally defaulted in state court but are nevertheless reviewable in federal court because he qualifies for the "cause and prejudice" and "miscarriage of justice" exceptions to the general rule that procedurally defaulted claims are not reviewable in federal habeas proceedings. Obj. at 2-3.[3] Petitioner has also filed a Motion of Reconsideration, stating he "appealed to the Supreme Courts [sic] and was denied." Mot. Recons. at 1.


In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. L.R. 72.2(b). A district judge "may accept, reject, or modify, in ...

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