Beaulieu v. Jesson

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Petitioner Wallace James Beaulieu's objections (Doc. No. 4 ) to Magistrate Judge Janie S. Mayeron's August 16, 2013 Report and Recommendation are OVERRULED. 2. Magistrate Judge Janie S. Mayeron 's August 16, 2013 Report and Recommendation (Doc. No. 3 ) is ADOPTED. 3. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1 ) is DENIED. 4. This action is summarily DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION. 5. Petitioner is NOT granted a Certificate of Appealability. (Written Opinion). Signed by Judge Donovan W. Frank on 11/15/2013. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Wallace James Beaulieu,

Civil No. 13-1893 (DWF/JSM)

Petitioner,
v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Lucinda Jesson, Commissioner of the
Minnesota Department of Human Services,
Respondent.

This matter is before the Court upon Petitioner Wallace James Beaulieu’s
(“Petitioner”) objections (Doc. No. 4) to Magistrate Judge Janie S. Mayeron’s August 16,
2013 Report and Recommendation (Doc. No. 3) insofar as it recommends that:
(1) Petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
denied; and (2) this action be summarily dismissed without prejudice for lack of
jurisdiction. Respondent Lucinda Jesson, Commissioner of the Minnesota Department of
Human Services, (“Respondent”) filed a memorandum in response to Petitioner’s
objections on September 18, 2013. (Doc. No. 9.)
The 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). The 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.

Having carefully reviewed the record, the Court concludes that Petitioner’s
objections do not warrant departure from the Magistrate’s ultimate Recommendation.
While the Magistrate Judge determined that the petition in this case constitutes a second
or successive petition over which the Court does not have jurisdiction, she also
recommended that this action be dismissed without prejudice so that Petitioner may seek
pre-authorization from the Court of Appeals to permissibly file such a petition. See
28 U.S.C. § 2244(b)(3); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (holding
that “the dismissal of a first petition with prejudice because of a procedural default (and a
failure to show cause and prejudice) . . . constitutes a disposition on the merits and
renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244(b)”).
The undersigned agrees with the Magistrate’s determination and finds that dismissal of
this matter without prejudice will provide Petitioner with the opportunity to seek
appropriate authorization from the Eighth Circuit to file a successive habeas petition and
assert his ineffective assistance of counsel claim.
The Court thus concludes, as did Magistrate Judge Mayeron, that Petitioner is not
entitled to habeas relief at this time. Consequently, the Court denies the petition and
dismisses this matter without prejudice.
Based upon the de novo review of the record, and all of the arguments and
submissions of the parties, and the Court being otherwise duly advised in the premises,
the Court hereby enters the following:

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ORDER
1.

Petitioner Wallace James Beaulieu’s objections (Doc. No. [4]) to

Magistrate Judge Janie S. Mayeron’s August 16, 2013 Report and Recommendation are
OVERRULED.
2.

Magistrate Judge Janie S. Mayeron’s August 16, 2013 Report and

Recommendation (Doc. No. [3]) is ADOPTED.
3.

Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 (Doc. No. [1]) is DENIED.
4.

This action is summarily DISMISSED WITHOUT PREJUDICE FOR

LACK OF JURISDICTION.
5.

Petitioner is NOT granted a Certificate of Appealability.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: November 15, 2013

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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