United States District Court, D. Minnesota
David R. Carlson, Petitioner,
State of Minnesota, Respondent.
REPORT AND RECOMMENDATION
R. THORSON UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner David R.
Carlson's Petition Under 28 U.S.C. Â§ 2254 for Writ of
Habeas Corpus by a Person in State Custody, Doc. No. 1
(Petition). For the reasons discussed below, the Court
recommends dismissing the Petition without prejudice, based
on this Court's lack of jurisdiction.
2006, a St. Louis County jury convicted Carlson of three
counts of criminal sexual conduct and one count of soliciting
a child to engage in sexual conduct. See Register of
Actions, State v. Carlson, No. 69DU-CR-05-2261
(Minn. Dist. Ct.), available at
http://pa.courts.state.mn.us (last accessed Apr. 2, 2019).
The trial court later sentenced Carlson to 144 months.
See Id. Carlson is presently subject to
Minnesota's Intensive Supervised Release Program.
See Pet. 14; Offender Locator-David Richard Carlson,
available at http://coms.doc.state.mn.us (last
accessed Apr. 2, 2019).
his conviction, Carlson has filed at least three unsuccessful
federal-court challenges to his conviction's validity.
See Pet. for Relief from a Conviction or Sentence by
a Person in State Custody 2, Carlson v. Dooley, No.
10-CV-1882 (JNE/JJG) (D. Minn. May 17, 2010); Order 2,
Carlson v. Dooley, No. 10-CV-1882 (JNE/JJG) (D.
Minn. Jan. 4, 2011) (adopting report and recommendation
denying petition); Pet. for Relief from a Conviction or
Sentence by a Person in State Custody 2, Carlson v.
Dooly, No. 13-CV-0525 (JNE/JJG) (D. Minn. Mar. 6, 2013);
Order on R. & R. 1, Carlson v. Dooly, No.
13-CV-0525 (JNE/JJG) (D. Minn. Apr. 24, 2013) (adopting
report and recommendation denying petition); Pet. of Writ
§ 2254 at 2, Carlson v. Benson, No. 16-CV-1974
(JNE/KMM) (D. Minn. June 14, 2016); Order 2, Carlson v.
Benson, No. 16-CV-1974 (JNE/KMM) (D. Minn. Aug. 31,
2016) (adopting report and recommendation denying petition).
present Petition also challenges the validity of
Carlson's conviction. Pet. 2. As best as the Court can
tell, the Petition raises one ground for
review. Carlson appears to allege that at some
point during his trial, his appointed counsel told the
prosecutor that she would be “buying the drinks after
this is all over.” Pet. 9; see also Letter
from David R. Carlson to Clerk of Court, U.S. District Court
for the District of Minnesota 1 (Jan. 31, 2019) (January 2019
Letter) (making same point), provided in Doc. No.
1-2. Carlson asserts that this statement automatically shows
that he received ineffective assistance of trial counsel.
See Pet. 9; January 2019 Letter 1.
Court lacks jurisdiction to consider the 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.” The
pending Petition is plainly second or successive; it
challenges the same conviction that Carlson has already
challenged at least three times. Cf. Magwood v.
Patterson, 561 U.S. 320, 332-33 (2010) (“[T]he
phrase ‘second or successive' must be interpreted
with respect to the judgment challenged.”). Without
authorization from the U.S. Court of Appeals for the Eighth
Circuit, this Court cannot adjudicate the Petition's
leads to the question of whether the Court should dismiss the
Petition or transfer it to the Eighth Circuit for further
consideration of whether to authorize the Petition under
§ 2244(b)(3)(A). This Court recommends dismissal. The
claim that the Petition raises fits none of the criteria for
authorization set forth in § 2244(b)(2): it is not based
upon a new constitutional-law rule; its factual predicate was
known long ago; and it does not suggest that Carlson is
actually innocent of the crimes for which he was convicted.
Given these points, the Court does not believe that the
Eighth Circuit can authorize the Petition, so the Court
recommends that the Petition be dismissed rather than
a § 2254 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 court may not grant a
COA unless the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Furthermore, “[w]hen the
district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional
claim”-as here- “a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). In
this case, it is highly unlikely that any other court,
including the Eighth Circuit, would treat Carlson's
Petition differently than it is being treated here. It is
therefore recommended that Carlson not be granted a COA in
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
matter be DISMISSED WITHOUT PREJUDICE for
lack of jurisdiction.
certificate of appealability be issued.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not