McDaniels v. Olmstead County

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendation. Petition for a writ of habeas corpus is denied, this action is dismissed. A certificate of appealability will issue only as to the question of counsel's alleged conflict of interest. (Written Opinion). Signed by Judge James M. Rosenbaum on 07/01/2009. (kmc)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA 08-CV-5184 (JMR/JJG) Darnell McDaniels v. Olmsted County ) ) ) ) )

ORDER

This matter is before the Court for consideration of the Report and Recommendation issued by the Honorable Jeanne J. Graham, United States Magistrate Judge, on May 29, 2009 [Docket No. 18]. Plaintiff, acting pro se, filed objections pursuant to Local Rule 72.2. While the objections were tardy-received, the Court has

considered them. Based on a de novo review of the record, the Court adopts the Magistrate's Report and Recommendation. The Court also considers issuance of a certificate of

appealability.

Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.

1997). A certificate of appealability will issue if petitioner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Based on the files, pleadings,

and proceedings herein, the Court concludes that the issue of counsel's alleged conflict of interest is "debatable among

reasonable jurists" and merits further proceedings.

Flieger v.

Delo, 16 F.3d 878, 882-83 (8th Cir. 1994) (citing Lozada v. Deeds, 498 U.S. 430, 432 (1991)). Therefore, a certificate of

appealability will issue concerning this question. question may be appealed.

No other

Accordingly, IT IS ORDERED that: 1. Plaintiff's petition for a writ of habeas corpus is

denied. [Docket No. 1.] 2. 3. This action is dismissed with prejudice. A certificate of appealability will issue as to the

question of counsel's alleged conflict of interest. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: July 1, 2009

s/ JAMES M. ROSENBAUM JAMES M. ROSENBAUM United States District Judge