United States District Court, D. Minnesota
LOVELL N. OATES, Petitioner,
MINNESOTA DEPARTMENT OF CORRECTIONS, et al., Respondent.
REPORT AND RECOMMENDATION
Brisbois United States Magistrate Judge
1999, Petitioner Lovell N. Oates was found guilty by a
Hennepin County jury of one count of second-degree murder and
four counts of second-degree assault. See, Oates
v. State, No. A15-0788, 2016 WL 687465, *1 (Minn.Ct.App.
Feb. 22, 2016). The trial court imposed a 306-month term of
imprisonment on the murder count and 36-month terms of
imprisonment on each of the assault counts, with two of those
assault counts to be served consecutively to all the rest and
two concurrently, resulting in a total term of imprisonment
of 378 months. Id. Since then, Oates has repeatedly
challenged the validity of his sentence and conviction on
collateral review, including once through a petition for a
writ of habeas corpus filed in this District. See,
Oates v. State of Minnesota, No. 04-CV-3044
(ADM/FLN), 2005 WL 589618 (D. Minn. Mar. 11, 2005). That
petition was denied as untimely. Id.
now returns to federal court, again challenging the validity
of his 1999 sentence through a Petition for a Writ of Habeas
Corpus brought pursuant to 28 U.S.C. §
2254. According to Oates, the trial court
misapplied the Minnesota Sentencing Guidelines in determining
his sentences for assault. Based on that alleged error, Oates
seeks a reduction in sentence.
Court lacks jurisdiction to consider the Habeas Petition.
Under 28 U.S.C. § 2244(b)(3)(A), “[b]efore a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”
Oates's pending Habeas Corpus Petition is undoubtedly
second or successive; it challenges the same sentencing
judgment that was challenged in the 2004 habeas corpus
petition denied as untimely. See, Magwood v.
Patterson, 561 U.S. 320, 332 (2010) (“[T]he phrase
‘second or successive' must be interpreted with
respect to the judgment challenged.”); Diaz Diaz v.
United States, 297 Fed.Appx. 574, 575 (8th Cir. 2008)
(per curiam) (finding that dismissal for untimeliness
constitutes dismissal on the merits for purposes of
determination whether pleading is “second or
successive.”). No new judgment has superseded the 1999
judgment. Absent authorization from the Eighth Circuit Court
of Appeals, this Court cannot adjudicate the merits of the
only question remaining with respect to the Habeas Corpus
Petition itself is whether the Petition should be dismissed
or transferred to the Eighth Circuit Court of Appeals for
further consideration of whether to authorize the Petition
pursuant to § 2244(b)(3)(A). This Court recommends
dismissal. First, the Petition filed by Oates, even if it
were properly before the Court, is futile, both because it is
untimely, see, 28 U.S.C. § 2244(d)(1), and
because it is based entirely upon an alleged error of state
law, see, Lewis v. Jeffers, 497 U.S. 764,
780 (1990) (“[F]ederal habeas corpus relief does not
lie for errors of state law.”). Second, the claim
raised by Oates in his Petition fits none of the criteria for
authorization set forth in § 2244(b)(2)(B) that is, his
claim is not based upon a new rule of constitutional law; the
factual predicate of his claim could have been known long ago
(indeed, the claim would have been known at the time of
sentencing); and the claim concerns only the propriety of his
sentence, not whether he is actually innocent of the assault
offenses. Because the Eighth Circuit cannot authorize
Oates's Petition, it is recommended that the Petition be
dismissed rather than transferred.
with his Petition for a Writ of Habeas Corpus, Oates has also
filed several Motions that are now pending. Those Motions are
largely mooted or invalidated by the finding that the Court
is without jurisdiction to consider the Habeas Petition.
Oates's Application to Proceed in forma
pauperis, [Docket No. 3], must be denied, as his Habeas
Corpus Petition cannot be entertained. See,
Kruger v. Erickson, 77 F.3d 1071, 1074 n.3 (8th Cir.
1996) (per curiam). Oates's Motions for Appointment of
Counsel, [Docket Nos. 9 and 10], should likewise be denied,
as further attempts at prosecution of this matter before this
Court prior to a grant of authorization from the Eighth
Circuit would be futile, with or without assistance of
counsel. Oates's Motion to amend his Petition, [Docket
No. 11], should be denied, as the amended petition he has
submitted would be no less “second or successive”
than the initial Petition. Oates's Motion for a Summons,
[Docket No. 12], should be denied, as the State of Minnesota
has already been notified of this action in accordance with
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. And Oates's Motion for the
Court to take “judicial notice” of multiple
assertions, [Docket No. 15], may be denied as moot, as none
of those assertions is relevant to the jurisdictional
question at issue.
a § 2254 habeas corpus petitioner cannot appeal an
adverse ruling on his petition unless he is granted a
certificate of appealability (“COA”). See 28
U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
cannot be granted unless the petitioner “has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). In this case, it is highly unlikely that any other
court, including the Eighth Circuit Court of Appeals, would
treat Oates's current Habeas Corpus Petition differently
than it is being treated here. Oates has not identified, and
this Court cannot discern, anything novel, noteworthy or
worrisome about this case that warrants appellate review. It
is therefore recommended that Oates should not be granted a
COA in this matter.
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 jurisdiction.
Application of Petitioner Lovell N. Oates to proceed in
forma pauperis, [Docket No. 3], be
Oates's Motions for Appointment of Counsel, [Docket Nos.
9 and 10] be DENIED.
Oates's Motion for Amendment, [Docket No. 11], be
Oates's Motion for a Summons, [Docket ...