United States District Court, D. Minnesota
S. Doty, Judge United States District Court
matter is before the court upon petitioner Fredrick Dewayne
Hines's objection to the December 5, 2016, report and
recommendation (R&R) of Magistrate Judge Steven E. Rau.
In his report, the magistrate judge recommended that: (1)
Hines's habeas petition be denied, and (2) a certificate
of appealability should not issue. After a de novo review,
the court finds that the R&R is well reasoned and
underlying facts are not in dispute and will not be repeated
except as necessary. On September 25, 2014, the state
district court convicted Hines of first-degree sexual
conduct, third-degree criminal sexual conduct, terroristic
threats, domestic assault, and second-degree assault.
State v. Hines, No. A14-1944, 2015 WL 5664856, at
*2-3 (Minn.Ct.App. Sept. 28, 2015). Hines, through counsel
and a pro se supplemental brief, appealed, and the Minnesota
Court of Appeals found that the district court erred in
sentencing the sexual conduct offense before the terroristic
threats offense and remanded the case for
resentencing. Id. at *1. The court of appeals
rejected Hines's other grounds for relief. Hines did not
seek a review of the decision by the Minnesota Supreme Court.
February 2, 2016, Hines filed a habeas petition in state
court raising many of the same grounds previously rejected by
the court of appeals. See Resp't App. at 218-55,
ECF No. 15. Hines also alleged that on May 16, 2015, officers
at the Minnesota Department of Corrections entered his cell,
exchanged court transcripts, and removed documents in an
attempt to cover up the constitutional violations he alleged
in the previous appeal. Id. at 223. Hines argued
that his petition should be granted because these events
defrauded the court of appeals. Id.
state court dismissed the petition without prejudice, but the
court later reopened the action when Hines paid the filing
fee. Id. at 260, 262. Although the court reopened
the case, Hines appealed the previous order dismissing his
petition. Id. at 265. Hines, however, voluntarily
dismissed the appeal. Id. at 270. The state court
docket reflects that the habeas action was administratively
closed and no order was issued in the case. See
5, 2016, Hines filed a habeas petition pursuant to 28 U.S.C.
§ 2254 alleging that: (1) the May 2015 events at the
Department of Corrections defrauded the court of appeals; (2)
his conviction was based on perjured testimony; (3) the
prosecutor misrepresented material facts; (4) trial counsel
was ineffective; and (5) the prosecutor withheld exculpatory
evidence. See ECF No. 1. The magistrate judge
recommended that the petition be dismissed because, except
for his fraud on the court claim, Hines's grounds for
relief are procedurally defaulted. See R&R at 5-7.
Hines now objects to the R&R.
argues that the procedural default should be excused because
a failure to address his claims will result in a fundamental
miscarriage of justice. See Coleman v. Thompson, 501
U.S. 722, 750 (1991) (holding that a federal court may only
hear defaulted claims where “the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or ... the
failure to consider the claims will result in a fundamental
miscarriage of justice”).
fundamental miscarriage of justice exception applies when a
petitioner shows that “a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.” Schlup v. Delo, 513 U.S. 298, 327
(1995) (citation and internal quotation marks omitted). To
meet this burden, a petitioner “must produce ‘new
reliable evidence' and ‘must show that it
is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.'”
House v. Bell, 547 U.S. 518, 556 (2006) (Roberts,
J., concurring) (emphasis in original) (quoting
Schlup, 513 U.S. at 324, 327). Hines has produced no
new evidence suggesting that he is actually innocent. As a
result, Hines's claims, except for the fraud on the court
claim, are procedurally defaulted, and the court dismisses
the claims with prejudice.
also objects to the dismissal of his fraud on the court claim
without prejudice. But Hines's objection simply reargues
the merits, and he does not object to the R&R's
conclusion that he has failed to exhaust this claim in state
court. After a careful review, the court agrees with the
R&R's conclusion that the fraud on the court claim
should be dismissed without prejudice.
Certificate of Appealability
warrant a certificate of appealability, a petitioner must
make a “substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. §
2253(c)(2). A “substantial showing” requires a
petitioner to establish that “reasonable jurists”
would find the court's assessment of the constitutional
claims “debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). As discussed, the
court is firmly convinced that ...