Hines v. Smith
ORDER adopting Report and Recommendations re 37 Report and Recommendation; denying as moot 39 Motion for Extension of Time; granting 12 Motion to Dismiss (Written Opinion) Signed by Senior Judge David S. Doty on 1/30/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-2345(DSD/SER)
Fredrick DeWayne Hines,
Michelle Smith, Warden,
This matter is before the court upon petitioner Fredrick
Dewayne Hines’s objection to the December 5, 2016, report and
recommendation (R&R) of Magistrate Judge Steven E. Rau.
report, the magistrate judge recommended that: (1) Hines’s habeas
petition be denied, and (2) a certificate of appealability should
After a de novo review, the court finds that the R&R is
well reasoned and correct.
The underlying facts are not in dispute and will not be
repeated except as necessary.
On September 25, 2014, the state
district court convicted Hines of first-degree sexual conduct,
third-degree criminal sexual conduct, terroristic threats, domestic
assault, and second-degree assault.
State v. Hines, No. A14-1944,
2015 WL 5664856, at *2-3 (Minn. Ct. App. Sept. 28, 2015).
through counsel and a pro se supplemental brief, appealed, and the
Minnesota Court of Appeals found that the district court erred in
threats offense and remanded the case for resentencing.1
The court of appeals rejected Hines’s other grounds for
Hines did not seek a review of the decision by the
Minnesota Supreme Court.
On February 2, 2016, Hines filed a habeas petition in state
court raising many of the same grounds previously rejected by the
court of appeals.
See Resp’t App. at 218-55, ECF No. 15.
also alleged that on May 16, 2015, officers at the Minnesota
transcripts, and removed documents in an attempt to cover up the
constitutional violations he alleged in the previous appeal.
Hines argued that his petition should be granted because
these events defrauded the court of appeals.
Hines raised six grounds for appeal:
(1) the district court abused its discretion
by admitting relationship evidence that was
irrelevant and highly prejudicial; (2) the
district court plainly erred by allowing nonqualified witnesses to testify as experts; (3)
the district court erred by not sentencing the
offenses in the order in which they occurred;
(4) his conviction was obtained through
perjured testimony; (5) the state did not
comply with discovery requests and offered
fabricated evidence; and (6) his Sixth
Amendment right to effective assistance of
counsel was violated.
Id. at *1.
The state court dismissed the petition without prejudice, but
the court later reopened the action when Hines paid the filing fee.
Id. at 260, 262.
Although the court reopened the case, Hines
appealed the previous order dismissing his petition.
Id. at 265.
Hines, however, voluntarily dismissed the appeal. Id. at 270. The
administratively closed and no order was issued in the case.
id. at 272-75.
On July 5, 2016, Hines filed a habeas petition pursuant to 28
U.S.C. § 2254 alleging that: (1) the May 2015 events at the
Department of Corrections defrauded the court of appeals; (2) his
conviction was based on perjured testimony; (3) the prosecutor
misrepresented material facts; (4) trial counsel was ineffective;
and (5) the prosecutor withheld exculpatory evidence.
See ECF No.
1. The magistrate judge recommended that the petition be dismissed
because, except for his fraud on the court claim, Hines’s grounds
for relief are procedurally defaulted.2
See R&R at 5-7.
objects to the R&R.
Hines argues that the procedural default should be excused
The magistrate judge recommended that Hines’s fraud on the
court claim be dismissed without prejudice.
fundamental miscarriage of justice.
See Coleman v. Thompson, 501
U.S. 722, 750 (1991) (holding that a federal court may only hear
defaulted claims where “the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law, or ... the failure to consider the claims will
result in a fundamental miscarriage of justice”).3
The fundamental miscarriage of justice exception applies when
a petitioner shows that “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.”
Schlup v. Delo, 513 U.S. 298, 327 (1995) (citation and internal
quotation marks omitted).
To meet this burden, a petitioner “must
produce ‘new reliable evidence’ and ‘must show that it is more
likely than not that no reasonable juror would have convicted him
in light of the new evidence.’”
House v. Bell, 547 U.S. 518, 556
(2006) (Roberts, J., concurring) (emphasis in original) (quoting
Schlup, 513 U.S. at 324, 327).
Hines has produced no new evidence
suggesting that he is actually innocent.
As a result, Hines’s
claims, except for the fraud on the court claim, are procedurally
defaulted, and the court dismisses the claims with prejudice.
Hines also objects to the dismissal of his fraud on the court
claim without prejudice. But Hines’s objection simply reargues the
merits, and he does not object to the R&R’s conclusion that he has
Hines does not object to the magistrate judge’s conclusion
that his claims are procedurally defaulted and that he has failed
to show cause for the default.
failed to exhaust this claim in state court.
After a careful
review, the court agrees with the R&R’s conclusion that the fraud
on the court claim should be dismissed without prejudice.4
Certificate of Appealability
To warrant a certificate of appealability, a petitioner must
make a “substantial showing of the denial of a constitutional
right” as required by 28 U.S.C. § 2253(c)(2).
jurists” would find the court’s assessment of the constitutional
claims “debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473,
As discussed, the court is firmly convinced that
Hines’s petition merits dismissal, and that reasonable jurists
could not differ. Therefore, a certificate of appealability is not
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1. The objection [ECF No. 38] to the report and recommendation
2. The report and recommendation [ECF No. 37] is adopted in
Hines also filed a motion for an extension of time and a
transfer to another prison or location within the prison. Because
Hines submitted his objection, the motion for an extension of time
will be denied as moot. Further, the request to transfer Hines to
another prison is denied because his location is at the discretion
of the Bureau of Prisons.
3. Respondent’s motion to dismiss [ECF No. 12] is granted;
4. The petition for a writ of habeas corpus [ECF No. 1] is
5. The motion for an extension of time [ECF No. 39] is denied
6. The case is dismissed without prejudice to the extent
indicated above; and
certificate of appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 30, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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