United States District Court, D. Minnesota
NMN Blocker, Reg. No. 247428, pro se petitioner.
Light and Kathryn M. Keena, DAKOTA COUNTY ATTORNEYS and Edwin
W. Stockmeyer, III, and Matthew Frank, MINNESOTA ATTORNEY
GENERAL for defendant.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
February 23, 2018, Petitioner Bryan Blocker filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (Pet., Feb. 23, 2018, Docket No. 1.) Blocker
concurrently moved to temporarily stay proceedings so that he
could exhaust one of his claims in state court. (Mot. for
Temp. Stay, Feb. 23, 2018, Docket No. 2.) United States
Magistrate Judge Becky R. Thorson issued a Report and
Recommendation (“R&R”) recommending that the
Court deny Blocker's motion to stay, allow him to delete
his unexhausted claims, and allow him to proceed with his
exhausted claims. (R&R at 3, June 25, 2018, Docket No.
13.) Blocker objects. (Objs., July 11, 2018, Docket No. 14.)
Because Blocker has not established good cause for his
failure to exhaust and has not shown that his unexhausted
claims are potentially meritorious, the Court will overrule
his objections, adopt the R&R, and deny his motion to
STANDARD OF REVIEW
the filing of an R&R by a magistrate judge, “a
party may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). To be proper, the objections must
specifically identify the portions of the R&R to which
the party objects and explain the basis for the objections.
Turner v. Minnesota, No. 16-3962, 2017 WL 5513629,
at *1 (D. Minn. Nov. 17, 2017). Blocker timely filed
objections that specifically identify the portions of the
R&R to which he objects, and he explains the reasons for
his objections. As such, the Court will review the
objected-to portions of the R&R de novo.
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). Habeas
petitions that mix exhausted and unexhausted claims may not
be adjudicated by federal district courts. Rhines v.
Weber, 544 U.S. 269, 273-74 (2005). However, courts may
stay mixed petitions and hold them in abeyance while a
petitioner returns to state court to exhaust previously
unexhausted claims. Id. at 275-77. This
“stay-and-abeyance” procedure avoids the risk
that a petitioner forever loses the opportunity for federal
review of the unexhausted claims due to AEDPA's 1-year
statute of limitations. Id. Nevertheless, this
procedure may only be used if “the petitioner had good
cause for his failure to exhaust, [the] unexhausted claims
are potentially meritorious, and there is no indication that
the petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278. Where stay and abeyance
are not appropriate, district courts should allow petitioners
to delete their unexhausted claims and proceed with the
exhausted claims. Id.
first argues that the R&R mischaracterizes his motion to
stay as a dilatory litigation tactic. On the contrary, the
R&R noted that “there is no
indication that Petitioner is engaging in dilatory litigation
tactics.” (R&R at 2 (emphasis added).)
Blocker's objection misunderstands the R&R's
analysis; thus, the Court will overrule this objection.
next objects to the R&R's recommendation that he be
allowed to delete the unexhausted claims and proceed with the
exhausted claims. Blocker's basis for this objection
revolves mostly around his status as a pro se
party. The Court is sympathetic to Blocker's
situation; however, Blocker has not provided any basis upon
which the Court can find that he had good cause for failing
to exhaust his claims or that the unexhausted claims are
potentially meritorious, as required by Supreme Court
good cause, the only explanation Blocker gives is that he
does not have the assistance of counsel. But beyond alleging
that his status as a pro se petitioner makes litigation
slower and more difficult, Blocker has not explained how this
lack of assistance has kept him from exhausting his claim. He
does not allege that he missed a deadline or that he sought
appointment of counsel but was denied.
Blocker could demonstrate good cause, he has not demonstrated
that his unexhausted claims are meritorious. The Court
liberally construes documents filed pro se. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). But in this case, there
is nothing to construe. Neither Blocker's petition nor
his objections to the R&R allege any facts to support a
claim for ineffective assistance of counsel. See Bracken
v. Dormire, 247 F.3d 699, 703 (8th Cir. 2001)
(“This is not a case where the petitioner inartfully
raised factual issues that implicated legal propositions that