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Fort v. Smith

United States District Court, D. Minnesota

November 21, 2014

EUGENE ERICK FORT, Petitioner,
v.
MICHELLE SMITH, Respondent

Eugene Erick Fort, Plaintiff, Pro se, Bayport, MN.

For Michelle Smith, Defendant: Jean E Burdorf, LEAD ATTORNEY, Hennepin County Attorney's Office - A2000, Mpls, MN; Matthew Frank, LEAD ATTORNEY, James B Early, Minnesota Attorney General's Office - Ste 1800, St Paul, MN.

REPORT AND RECOMMENDATION

TONY N. LEUNG, United States Magistrate Judge.

This matter is before the undersigned United States Magistrate Judge on Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) and motion to stay (ECF No. 4). The case 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, it is recommended that this action be summarily dismissed without prejudice pursuant to Rule 4 of The Rules Governing Section 2254 Cases In The United States District Courts[1] and the motion to stay be denied as moot.

I. BACKGROUND

A. Post-Conviction Proceedings

Petitioner is a prisoner at the Minnesota Correctional Facility at Stillwater, Minnesota. He is serving a sentence of life-in-prison, which was imposed in the State District Court for Hennepin County, Minnesota. Petitioner was sentenced after a jury found him guilty on two counts of first-degree murder. (Petition at 2-3.)

On direct appeal, one of Petitioner's first-degree murder convictions was vacated, but the remaining conviction, and the concomitant life sentence, were upheld. State v. Fort, 768 N.W.2d 335 (Minn. 2009). In July 2011, Petitioner filed a post-conviction motion in the state trial court, claiming that he should be granted a new trial based on newly discovered evidence and ineffective assistance of counsel. The post-conviction motion was denied, and Petitioner then filed a second appeal. On April 17, 2013, the Minnesota Supreme Court affirmed the trial court's ruling on Petitioner's post-conviction motion. Fort v. State, 829 N.W.2d 78 (Minn. 2013).

Petitioner's current habeas corpus petition, which was filed on April 7, 2014, presents two grounds for relief, which Petitioner has identified as follows:

(1) " Ineffective assistance of counsel -- trial and appeal counsels; " and
(2) " Prosecutory misconduct."

(Petition at 7-8.)

Petitioner represents that his first ground for relief was raised in the Minnesota state courts, (id. at 7), but he acknowledges that his second ground for relief has not been raised in state court, (id. at 9). Petitioner contends that he did not know about his current " prosecutory misconduct" claim, (ground two), until after his state post-conviction proceedings were fully completed. (Id.) Petitioner's second ground for relief has never been raised in any state court proceeding ...


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