United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
S. MAYERON, United States Magistrate Judge
Darryl Colbert was convicted of first-degree murder after a
jury trial in Minnesota state court. See State v.
Colbert, 716 N.W.2d 647 (Minn. 2006). That conviction
has been the subject of previous habeas corpus litigation in
this District. Colbert's previous petition for a writ of
habeas corpus, brought pursuant to 28 U.S.C. § 2254, was
denied with prejudice and on the merits in 2007. See
Colbert v. Minnesota, No. 06-CV-4407 (ADM/RLE), 2007 WL
4224214 (D. Minn. Nov. 28, 2007).
6, 2016, Colbert sought permission from the Eighth Circuit
Court of Appeals to file a second-or-successive petition for
habeas corpus relief in federal court. See Colbert v.
Hammer, No. 16-2121 (8th Cir. 2016). Federal statute
requires that “[t]he court of appeals shall grant or
deny the authorization to file a second or successive
application not later than 30 days after the filing of the
motion, ” 28 U.S.C. § 2244(b)(3)(D), but that
30-day deadline came and went without resolution of
Colbert's petition. In the meantime, Colbert was running
up against the one-year limitations window for filing his
habeas petition in district court, see 28 U.S.C.
§ 2244(d)(1)(D), and so, on July 6, 2016, Colbert
submitted his second-or-successive habeas petition to this
District notwithstanding the Eighth Circuit's inaction on
his petition for authorization.
months later, on October 3, 2016, Colbert's petition for
authorization to file a second or successive habeas petition
was denied by the Eighth Circuit. See Colbert, No.
16-2121 (8th Cir. Judgment Oct. 3 2016). “The grant or
denial of an authorization by a court of appeals to file a
second or successive application shall not be appealable and
shall not be the subject of a petition for rehearing or for a
writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).
This Court - indeed, no court, including the Supreme
Court - may examine or overrule the denial of a petition for
authorization to file a second-or- successive habeas petition
governed by § 2254. The Eighth Circuit's denial of
Colbert's request for authorization is the end of the
matter, and this Court lacks jurisdiction to consider the
merits of Colbert's second-or-successive habeas petition.
See 28 U.S.C. § 2244(b)(3)(A); Burton v.
Stewart, 549 U.S. 147, 157 (2007). The petition must be
dismissed without prejudice for lack of jurisdiction on that
basis. No certificate of appealability should be issued, as
it is beyond doubt that no other court, including the Eighth
Circuit, would treat Colbert's habeas petition
differently than it is being treated here. See 28
U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1); Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED THAT:
matter be DISMISSED WITHOUT PREJUDICE FOR LACK OF
certificate of appealability be issued.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. LR 72.2(b)(2). All
objections and responses must comply with the word or line
limits set for in LR 72.2(c).
Advisement Date: This Report and Recommendation will
be considered under advisement 14 days from the date of its
filing. If timely objections are filed, this Report and
Recommendation will be considered under advisement from the
earlier of: (1) 14 days after the objections are filed; or
(2) from the date a timely response is filed.