Green v. Minnesota, The State of
ORDER ADOPTING REPORT AND RECOMMENDATIONS 16 ; denying 10 Application to Proceed in District Court without Prepaying Fees or Costs filed by Brett Thomas Green, denying 12 Application to Proceed in District Court without Prepaying Fees or Costs filed by Brett Thomas Green, denying 21 Motion of Reconsideration on Writ of Habeas Corpus filed by Brett Thomas Green, denying 15 Motion to Proceed with Writ of Habeas Corpus filed by Brett Thomas Green, denying 13 Motion for Immediate Relief filed by Brett Thomas Green. This action is DISMISSED WITHOUT PREJUDICE and Petitioner is NOT granted a Certificate of Appealability (Written Opinion). Signed by Judge Ann D. Montgomery on 05/15/2014. (TLU) CC: Green. (kt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Brett Thomas Green,
Civil No. 13-3061 ADM/SER
Warden of Rush City MCF,
Brett Thomas Green, pro se.
This matter is before the undersigned United States District Judge for a ruling on
Petitioner Brett Thomas Green’s Objections [Docket No. 19] (“Obj.”) to Magistrate Judge
Steven E. Rau’s March 26, 2014 Report and Recommendation [Docket No. 16] (“R&R”), and on
Petitioner’s Motion of Reconsideration on Writ of Habeas Corpus (“Motion of
Reconsideration”) [Docket No. 21].
In the R&R, Judge Rau recommends denying Petitioner’s amended petition for a writ of
habeas corpus under 28 U.S.C. § 2254 (“Petition”) and summarily dismissing this case without
prejudice based on Petitioner’s failure to exhaust all available state court remedies for the claims
he seeks to raise in federal court. As a result, Judge Rau also recommends denying Petitioner’s
application for leave to proceed in forma pauperis [Docket No. 10], his Motion for Immediate
Relief [Docket No. 13], and his Motion to Proceed with Writ of Habeas Corpus [Docket No. 15].
Petitioner has filed Objections to the R&R, and has also filed a Motion of
Reconsideration. After a de novo review of the record, and for the reasons stated below,
Petitioner’s Objections are overruled, Judge Rau’s R&R is adopted, and Petitioner’s Motion of
Reconsideration is denied.
Petitioner is a prisoner at the Minnesota Correctional Facility in Rush City, Minnesota.
He has been convicted twice in Minnesota state district court for criminal sexual conduct. The
first conviction resulted from a guilty plea in 2007 in a case identified as No. 30CR-07-71 (“First
Case”). Petitioner did not appeal this conviction. The second conviction resulted from an
August 2010 jury verdict in a case identified as No. 30CR-08-1174 (“Second Case”). Petitioner
appealed the second conviction, and the Minnesota Court of Appeals affirmed the conviction on
April 30, 2012. State v. Green, No. A11-850, 2012 WL 1470164 (Minn. Ct. App. Apr. 30,
After his conviction was affirmed, Petitioner filed a series of post-conviction motions in
state district court. Amended Petition [Docket No. 9] ¶¶ 8-12. Petitioner’s state court
proceedings remain active and pending in the state district court and in the Minnesota Court of
Appeals. For example, in Petitioner’s First Case, the district court granted Petitioner a courtappointed attorney in March 2014, and conducted a motion hearing in late April, 2014.1 In the
Second Case, Petitioner appealed a March 13, 2014 post-conviction order entered by the district
court. See Green v. State, Case No. A14-0613 (Minn. Ct. App. 2014). The appeal is in the
briefing stage at the Minnesota Court of Appeals.2
See Minnesota Trial Court case records, available at:
http://pa.courts.state.mn.us/CaseDetail.aspx?CaseID=1610787184 (last visited May 15, 2014).
See Minnesota Appellate Courts Case Management System, available at:
nstanceID=87119 (last visited May 15, 2014) (listing appeal status as “briefing”).
In addition to his post-conviction motions in state court, Petitioner also filed a federal
habeas corpus petition in this Court challenging both his first and second state convictions on
four grounds. The R&R recommends that the Petition be denied and this action dismissed
because Petitioner has failed to fully exhaust all available state court remedies and therefore does
not satisfy the standards for federal habeas corpus relief set forth in 28 U.S.C. § 2254. In
recommending denial, Judge Rau recognized that Petitioner had applied for post-conviction
relief in state court, and determined the state courts had not had the opportunity to resolve
Petitioner’s constitutional claims through the state court’s established appellate review process.
R&R at 3-4.
After the R&R was issued, Petitioner attempted to file a writ of habeas corpus in the
Minnesota Supreme Court, stating “the U.S. District Courts have ordered me to appeal to you.”
Ex. To Mot. Recons. at 3. The Minnesota Supreme Court Commissioner declined to file
Petitioner’s papers and returned them to Petitioner with a letter explaining that “to the extent you
seek postconviction relief, you must file that petition first with the [state] district court.” Id. at 1.
The Commissioner further explained that because the petition was not an appeal from a final
order or entry of judgment by the district court, the state appellate courts had no jurisdiction over
the petition. Id.
Petitioner objects to the R&R, arguing that pursuing relief in the state courts would be
both “ineffective” and “unavailable” due to his failure to timely seek relief from his convictions.
Petitioner contends his claims are procedurally defaulted in state court but are nevertheless
reviewable in federal court because he qualifies for the “cause and prejudice” and “miscarriage
of justice” exceptions to the general rule that procedurally defaulted claims are not reviewable in
federal habeas proceedings. Obj. at 2-3.3 Petitioner has also filed a Motion of Reconsideration,
stating he “appealed to the Supreme Courts [sic] and was denied.” Mot. Recons. at 1.
In reviewing a magistrate judge’s report and recommendation, the district court “shall
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also D. Minn.
L.R. 72.2(b). A district judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
As the R&R correctly notes, a state prisoner is required to exhaust all state court
remedies before a federal court will consider the merits of a petition for federal habeas relief. 28
§ 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “[S]tate prisoners
must give the state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at
845 (emphasis added). “The exhaustion doctrine is principally designed to protect the state
courts’ role in the enforcement of federal law and prevent disruption of state judicial
proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982). Therefore, comity requires that state
courts have the first opportunity to review prisoners’ federal claims. O’Sullivan, 526 U.S. at
844. Failure to present federal claims to all available state courts will bar federal review. Id. at
In this case, Judge Rau correctly found that none of Petitioner’s federal claims for relief
had been fully exhausted. Although Petitioner argues his claims are procedurally barred in state
Page numbers refer to the numbers in the ECF heading.
court, his state court proceedings remain active and pending in both the state district court and
Minnesota Court of Appeals. Petitioner’s claims have not undergone a complete round of the
state’s established review process, and the Minnesota state courts have not yet determined
which, if any, of Petitioner’s unexhausted federal constitutional claims may be heard and
decided on the merits, and which are procedurally barred.
Petitioner’s reliance on the letter from the Minnesota Supreme Court Commissioner to
argue his claims are procedurally barred is misplaced. The letter makes no determination as to
whether Petitioner’s claims are procedurally barred. Rather, the letter merely informs Petitioner
that the appellate courts lack original jurisdiction over petitions for post-conviction relief and can
only review final orders or judgments entered by a lower state court. Thus, the Petition is
dismissed without prejudice for failure to properly exhaust all state court remedies.
IV. CERTIFICATE OF APPEALABILITY
The Court may grant a certificate of appealability only where a petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
such a showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.” Slack v. Daniel, 529 U.S.
473, 484 (2000). In this case, it is virtually certain that no other federal court, including the
Eighth Circuit Court of Appeals, would decide Petitioner's constitutional claims any differently
than they have been decided here. Petitioner has not identified, and the Court cannot
independently discern, anything novel, noteworthy or worrisome about this case that warrants
appellate review. The Court therefore declines to grant a certificate of appealability.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
Petitioner Brett Thomas Green’s Objections [Docket No. 19] to Magistrate Judge
Steven E. Rau’s March 26, 2014 Report and Recommendation [Docket No. 16]
The Report and Recommendation [Docket No. 16] is ADOPTED;
Petitioner’s amended petition for a writ of habeas corpus [Docket No. 9] is
Petitioner’s applications for leave to proceed in forma pauperis [Docket Nos. 10,
12] are DENIED;
Petitioner’s Motion for Immediate Relief [Docket No. 13] is DENIED;
Petitioner’s Motion to Proceed with Writ of Habeas Corpus [Docket No. 15] is
Petitioner’s Motion of Reconsideration on Writ of Habeas Corpus [Docket No.
21] is DENIED;
This action is DISMISSED WITHOUT PREJUDICE; and
Petitioner is NOT granted a Certificate of Appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: May 15, 2014.
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