Dudley v. Symmes
Filing
26
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,
Plaintiff,
ORDER
v.
Warden Jessica Symmes,
Defendant.
This
matter
is
before
the
court
upon
the
motion
for
a
certificate of appealability (COA) by plaintiff Terrance Alfonso
Dudley.
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.
Defendant
Jessica Symmes filed a motion to dismiss on June 3, 2011.
parties
submitted
advisement.
memoranda
and
the
motion
was
taken
Both
under
Thereafter, Dudley notified the court in a letter
dated November 8, 2011, that he had “been moved to Stillwater
prison.”
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
Circuit.
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
to
establish
that
reasonable
jurists
would
find
the
court’s
assessment of the constitutional claims “debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Setting
aside
the
issue
of
timeliness,1
a
COA
is
not
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.
Accordingly,
above,
based
on
the
1
IT
IS
HEREBY
ORDERED
that
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.
2
plaintiff’s motion for a certificate of appealability [ECF No. 25]
is denied.
Dated
January 28, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
3
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