Dudley v. Symmes
ORDER denying 25 Motion for Certificate of Appealability (Written Opinion). Signed by Senior Judge David S. Doty on 1/28/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-1422(DSD/JJG)
Terrance Alfonso Dudley,
Warden Jessica Symmes,
certificate of appealability (COA) by plaintiff Terrance Alfonso
Based on a review of the file, record and proceedings
herein, and for the following reasons, the court denies the motion.
Dudley filed a habeas petition on June 1, 2011.
Jessica Symmes filed a motion to dismiss on June 3, 2011.
Thereafter, Dudley notified the court in a letter
dated November 8, 2011, that he had “been moved to Stillwater
ECF No. 11.
On January 5, 2012, Magistrate Judge Jeanne
J. Graham recommended that Dudley’s petition be denied and that the
court grant Symmes’s motion to dismiss. Dudley did not object, and
the court adopted the magistrate’s report and recommendation on
January 26, 2012.
A copy of the judgment was mailed to Stillwater
Correctional Facility, 5329 Osgood Ave N., Stillwater, Minnesota
55082, but was returned as undeliverable.
See ECF No. 15.
On August 20, 2012, Dudley notified the court of a subsequent
change of address and requested an update regarding the progress of
his habeas petition.
See ECF No. 16.
In response, a copy of the
court’s January 26, 2012, order was mailed to Dudley’s updated
address. Thereafter, Dudley filed a notice of appeal to the Eighth
Dudley also filed a COA in this court.
To warrant a COA, a petitioner must make a “substantial
showing of the denial of a constitutional right” as required by 28
U.S.C. § 2253(c)(2). A “substantial showing” requires a petitioner
assessment of the constitutional claims “debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
warranted. As the magistrate judge correctly explained, claims one
through three were not presented to the Minnesota Supreme Court on
direct appeal, and claims four through six were not presented to
the state court until postconviction review or are meritless.
Moreover, Dudley presents no new arguments in his motion for COA.
Indeed, Dudley has not demonstrated that reasonable jurists would
determine that the court’s assessment of the constitutional claims
are “debatable or wrong.”
Therefore, a COA is not warranted.
It appears that Dudley’s appeal is untimely. The court need
not determine whether equitable tolling applies because Dudley’s
COA request fails on the merits.
plaintiff’s motion for a certificate of appealability [ECF No. 25]
January 28, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?