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Considine v. Hammer

United States District Court, D. Minnesota

August 6, 2014

Chuck Thomas Considine, Petitioner,
v.
Steve Hammer, et al., Respondents.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter comes before the undersigned United States Magistrate Judge upon Petitioner Chuck Thomas Considine's Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, [Docket No. 1], and Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus, [Docket No. 9]. This case has been referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For reasons discussed herein, the Court recommends that Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus, [Docket No. 9], be GRANTED, and that Petitioner Considine's Petition for a writ of habeas corpus be DISMISSED with prejudice as time-barred.

I. BACKGROUND AND STATEMENT OF FACTS

On or about November 22, 2013, Petitioner Chuck Thomas Considine ("Petitioner"), a state prison inmate proceeding pro se, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the present Court, challenging the validity of his Minnesota state court confinement. (Petition [Docket No. 1]).

A. Petition for Writ of Habeas Corpus

Petitioner challenges an underlying Isanti County District Court conviction and sentence. On March 25, 2010, the Isanti County District Court sentenced Petitioner to 156 months for first degree criminal sexual conduct, to be served concurrently with 156 months for second degree criminal sexual conduct, to be served concurrently with 1 year for terroristic threats. (Id. at 1). Petitioner claims that he did not enter his plea knowingly or intelligently, in violation of his constitutional rights, because he relied on false information from his attorney(s) regarding his likelihood of success at trial. (Id. at 2-3). Relatedly, Petitioner alleges "numerous" counts of ineffective assistance of trial and appellate counsel, (Id. at 3-5), and prosecutorial misconduct, (Id. at 5-6).

B. Timeline of Relevant State Court Proceedings

On March 30, 2010, the Isanti County District Court issued a sentencing order in Petitioner's underlying state court case. (Exhibits in Support of Motion to Dismiss [Docket No. 11-2]). On June 29, 2010, Petitioner filed a Notice of Appeal and commenced his direct appeal of the district court conviction and sentence. (Id.) However, on September 14, 2010, Petitioner filed a Notice of Voluntary Dismissal of his direct appeal. (Id.) Accordingly, on September 15, 2010, the Minnesota Court of Appeals dismissed Petitioner's direct appeal upon Petitioner's notice of voluntary dismissal. (Exhibits in Support of Motion to Dismiss [Docket No. 11-1]). Nothing in the present record before the Court indicates or otherwise suggests that Petitioner applied for further review by the Minnesota Supreme Court.

On November 4, 2010, Petitioner filed his first motion for post-conviction relief with the Isanti County District Court. (Exhibits in Support of Motion to Dismiss [Docket No. 11-2]). The district court dismissed Petitioner's post-conviction petition on February 9, 2011. (Id.) Petitioner moved for review of the district court's denial of post-conviction relief in April 2011; the Minnesota Court of Appeals ultimately affirmed the district court's denial on November 16, 2011. (Id.) The Minnesota Supreme Court denied Petitioner's application for further review on January 25, 2012. (Id.) The Minnesota Court of Appeals entered its final judgment affirming the decision of the Isanti County District Court denying Petitioner post-conviction relief on January 30, 2012. (See [Docket No. 11-3]).

Petitioner then filed a second post-conviction motion, "to withdraw plea or void judgment, " on August 16, 2012.[1] (See [Docket No. 11-2]). The district court denied Petitioner's motion on August 22, 2012. (Id.) Petitioner appealed to the Minnesota Court of Appeals on November 5, 2012, and on November 7, 2012, the Clerk of the Appellate Courts informed Petitioner, via letter, that Petitioner's appeal of his post-conviction motion was deficient for failure to provide an affidavit of service and failure to include two copies of a Statement of the Case, and the letter directed Petitioner to correct the deficiencies within ten (10) days. (See [Docket No. 11-4]). When Petitioner did not correct the noted deficiencies, on November 30, 2012, the Minnesota Court of Appeals entered an order dismissing Petitioner's appeal for failure to correct these deficiencies, writing, "Because appellant has shown no basis for this court to accept jurisdiction, we will dismiss the appeal at this time. As directed below, appellant may remedy his deficiencies and file a motion to reinstate if he provides good cause for an extension [of time to appeal.]" (See [Docket No. 11-5]). The court ordered Petitioner to file and serve a motion to reinstate the appeal with a showing of good cause on or before December 10, 2012.

Petitioner subsequently filed a motion to reinstate his post-conviction appeal; however; Petitioner again failed to provide the Court of Appeals with all necessary filing papers, including failing to provide proof of service of the motion on respondent's counsel and a statement of the case. (See [Docket No. 11-6]). On February 1, 2013, the Minnesota Court of Appeals denied Petitioner's first motion to reinstate the appeal but granted Petitioner another opportunity to remedy the defects and provide a statement of good cause for an extension of time to file his appeal. (Id.)

Petitioner filed a second motion to reinstate his appeal, again failing to comply with applicable filing requirements and the Minnesota Court of Appeals February 1, 2013 order. (See [Docket No. 11-7]). The court denied Petitioner's second motion to reinstate his appeal on March 26, 2013. (Id.)

Petitioner filed a motion to reconsider the reinstatement of his appeal on May 10, 2013, with the Minnesota Court of Appeals. (See [Docket No. 11-2]). The Minnesota Court of Appeals denied Petitioner's motion on May 20, 2013, noting that "no petition for rehearing is allowed in this court. Appellant's remedy was to file a petition for review in the [S]upreme [C]ourt." (See [Docket No. 11-8]).

Finally, on July 19, 2013, after Petitioner filed a request for an extension of the deadline by which to petition the Minnesota Supreme Court for review, the Minnesota Supreme Court denied Petitioner's request and effectively denied review of the May 20, 2013 decision by the Minnesota Court of Appeals. (See [Docket No. 11-9]).

II. RESPONDENTS' MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS, [DOCKET NO. 9]

Pursuant to Rule 5 of the Rules Governing 28 U.S.C. § 2254 Cases, Respondents move the Court for an order dismissing Petitioner Considine's Petition for a writ of habeas corpus with prejudice as the Petition ...


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