United States District Court, D. Minnesota
ORDER ADOPTING REPORT AND RECOMMENDATION
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
This
matter is before the Court upon Petitioner Andrew James
Gibbons's (“Petitioner”) objections (Doc. No.
49) to Magistrate Judge Hildy Bowbeer's January 29, 2019
Report and Recommendation (Doc. No. 48) insofar as it
recommends that: (1) Petitioner's Motion to Consider
Supporting Memorandum to Respondent's Answer and to
Supplement and Amend, in part, the § 2254 Memorandum be
granted; (2) Petitioner's Motion to Expand the Record be
denied; (3) Petitioner's Motion to Accept Amended
Pleadings via Local Rule 15.1(a) and (b) (Amended) be denied;
(4) Petitioner's Motion to Accept Amended Pleadings via
Local Rule 15.1(a) and (b) (Strikethrough) be denied: (5)
Petitioner's Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody
(“Petition”) be denied; (6) Petitioner's
Motion to Request Appointment of Essential Expert and
Investigator be denied as moot; (7) this action be dismissed;
and (8) a Certificate of Appealability not be issued.
Respondent filed a response to Petitioner's objections on
February 20, 2019. (Doc. No. 61.)
The
factual background for the above-entitled matter is clearly
and precisely set forth in the Report and Recommendation and
is incorporated by reference for purposes of Petitioner's
objections. In the Report and Recommendation, the Magistrate
Judge considered Petitioner's habeas petition under
§ 2254, and found that none of Petitioner's grounds
for habeas relief (which are based on claims of ineffective
assistance of counsel) were articulated in his first petition
for post-conviction relief and are, therefore, procedurally
defaulted. In addition, the Magistrate Judge carefully
considered and found that Petitioner cannot rely on a claim
of ineffective assistance of counsel to excuse the procedural
default of the grounds for her Petition and that no
exceptions to the procedural default are available. In light
of this, the Magistrate Judge recommended that the Petition
be denied.
In
addition, out of an abundance of caution, the Magistrate
Judge considered additional motions filed by Petitioner
without first receiving required leave to do so. As such, the
Magistrate Judge recommended denying Petitioner's Second
Motion to Expand, denying Petitioner's Motion to Amend as
futile, and denying Petitioner's Second Motion to Request
Appointment as moot. Finally, the Magistrate Judge
recommended that no certificate of appealability
(“COA”) be granted because it is unlikely that
any other court, including the Eighth Circuit Court of
Appeals, would decide Petitioner's grounds for federal
relief any differently and Petitioner has not identified
anything novel, noteworthy, or worrisome about this case that
would warrant appellate review.
Petitioner
objects to the Report and Recommendation and separately filed
an Application for Certificate of Appealability and a motion
for discovery. It appears that the crux of Petitioner's
objection rests on the argument that he exhausted his claims,
has met a procedural default exception, and that his motion
to amend is not futile because he has met a procedural
default exception. More generally, Petitioner argues that he
should be allowed to expand the record.
The
Court has conducted a de novo review of the record,
including a review of the arguments and submissions of
counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). After this review, the Court finds no reason
that would warrant a departure from the Magistrate
Judge's recommendations, which are both factually and
legally correct. In particular, the Magistrate Judge
correctly concluded that Petitioner's habeas petition
should be denied. In addition, a § 2254 petitioner
cannot appeal an adverse ruling on his petition unless he is
granted a COA. 28 U.S.C. § 2253(c)(1). A COA may issue
only if the petitioner has made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Here, the Court concludes that Petitioner
has not made such a showing.
Therefore,
based upon the de novo review of the record and all
of the arguments and submissions of the parties and the Court
being otherwise duly advised in the premises, the Court
hereby enters the following:
ORDER
1.
Petitioner Andrew James Gibbons's objections (Doc. No.
[49]) to Magistrate Judge Hildy Bowbeer's January 29,
2019 Report and Recommendation are
OVERRULED.
2.
Magistrate Judge Hildy Bowbeer's January 29, 2019 Report
and Recommendation (Doc. No. [48]) is
ADOPTED.
3.
Petitioner Andrew James Gibbons's Motion to Consider
Supporting Memorandum to Respondent's Answer and to
Supplement and Amend, in part, the § 2254 Memorandum
(Doc. No. [33]) is GRANTED.
4.
Gibbons's Motion to Expand the Record (Doc. No. [30]) is
DENIED.
5.
Gibbons's Motion to Accept Amended Pleadings via Local
Rule 15.1(a) and (b) ...