United States District Court, D. Minnesota
ORDER ADOPTING REPORT AND RECOMMENDATION
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court upon Petitioner Enamidem Celestine
Okon's (“Petitioner”) objections (Doc. No.
17) to Magistrate Judge Tony N. Leung's January 22, 2019
Report and Recommendation (Doc. No. 14) insofar as it
recommends that: (1) Respondent's Motion to Dismiss be
granted; (2) this matter be dismissed without prejudice for
lack of jurisdiction; and (3) no certificate of appealability
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, finding that Petitioner's substantive
arguments were presented and addressed in a prior petition
and that the dismissal of the Petition is warranted. As to
Petitioner's argument regarding his federal-law
confrontation rights, the Magistrate Judge explained that
Petitioner received review of that issue. The Magistrate
Judge recommends dismissal of the present petition because
its substantive grounds have been previously presented to
this Court in a prior application and § 2244(b) compels
dismissal, without prejudice, for lack of jurisdiction. In
addition, the Magistrate Judge discussed Petitioner's
arguments in response to Respondent's motion to dismiss,
including Petitioner's “ends of justice”
argument and his position that the successive-petition bar of
§ 2244(b)(1) should not apply, and found them
unavailing. Finally, the Magistrate Judge recommended that
Petitioner not be granted a certificate of appealability
(“COA”) in this matter.
objects to the Report and Recommendation, arguing that his
first ground for relief is a “new error” and
cannot be construed as a second or successive application. In
addition, Petitioner objects on the grounds that the
“ends of justice” have not been satisfied because
the Minnesota state court did not conduct a harmless-error
analysis under the confrontation clause and because the Court
should apply the “substantial and injurious
effect” to the confrontation clause claim. Finally,
Petitioner argues that the Court should remand the
confrontation clause issue back to the state court or that
this Court should reconsider the merits of the confrontation
clause claim under the “ends of justice” standard
and grant habeas relief.
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 to
depart from the Magistrate Judge's recommendations, which
are both factually and legally correct. In particular, the
Magistrate Judge correctly determined that the substantive
grounds of the Petition were previously presented in a prior
application and, therefore, the Court lacks jurisdiction
under § 2244(b)(1)'s bar on second-or-successive
claims. Petitioner has separately filed an Application for
COA and/or Remand. (Doc. No. 21.) An appeal cannot be taken
from a final order in a habeas corpus proceeding without a
COA. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P.
22(b)(1). A court cannot grant a COA unless the applicant has
made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The
Court has reviewed the Magistrate Judge's recommendation
that no COA be granted and has separately considered whether
issuance of a COA is appropriate. After a careful review of
the record, the Court concludes that the Petitioner has not
raised any issue that is “debatable among reasonable
jurists” or that “deserve[s] further
proceedings.” Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994) (citing Lozado v. Deeds, 498
U.S. 430, 432 (1991) (per curiam)). Petitioner has
not, therefore, made the “substantial showing of the
denial of a constitutional right” necessary for the
issuance of a COA. 28 U.S.C. § 2253(c)(2). Thus,
Petitioner's Application for COA is properly denied.
Moreover, remand is unwarranted.
as discussed above and based upon the de novo review
of the record and the arguments and submissions of the
parties, and the Court being otherwise duly advised in the
premises, the Court hereby enters the following:
Petitioner Enamidem Celestine Okon's objections (Doc. No.
) to Magistrate Judge Tony N. Leung's January 22,
2019 Report and Recommendation are
Magistrate Judge Tony N. Leung's January 22, 2019 Report
and Recommendation (Doc. No. ) is
Respondent's Motion to Dismiss (Doc. No. ) is
matter is DISMISSED WITHOUT PREJUDICE for
lack of jurisdiction.
Petitioner's Application for COA and/or Remand (Doc. No.
) is DENIED.
certificate of appealability will not be issued.
JUDGMENT BE ...