Dahl v. Miles

Filing 31

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION of the Magistrate Judge 22 , overruling 16 Dahl's Motion to Appoint Counsel, and affirming Order of the Magistrate Judge 13 . (Written Opinion). Signed by Chief Judge John R. Tunheim on 08/20/2017. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JAMES DONALD DAHL,

Civil No. 16-3571 (JRT/BRT)

Petitioner,
v.
EDDIE MILES, JR.,

MEMORANDUM OPINION AND
ORDER REPORT
AND RECOMMENDATION OF
MAGISTRATE JUDGE

Respondent.
James Donald Dahl, No. 124796, Minnesota Correctional Facility, 1101
Linden Lane, Faribault, MN 55031, pro se.
Janelle P. Kendall, Stearns County Attorney, and Michael J. Lieberg,
Assistant County Attorney, STEARNS COUNTY ATTORNEY’S
OFFICE, 705 Courthouse Square, Room 448, St. Cloud, MN 56303, for
respondent.

Petitioner James Donald Dahl was convicted of criminal sexual conduct in 2010 in
state court. Dahl filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Court now considers Dahl’s objections to the Report and Recommendation (“R&R”)
of United States Magistrate Judge Becky Thorson recommending denial of Dahl’s
petition. After a thorough review of Dahl’s objections, the Court will adopt the Report
and Recommendation that Dahl’s habeas petition is time-barred, and thus dismissal of
Dahl’s petition is warranted.

BACKGROUND
I.

DAHL’S STATE-COURT PROCEEDINGS
In 2010, after a jury trial, Dahl was convicted of criminal sexual conduct in

Stearns County District Court. He was sentenced to serve 173 months in prison. The
34

Minnesota Court of Appeals affirmed his conviction on September 26, 2011, and the
Minnesota Supreme Court denied review on December 21, 2011.

State v. Dahl,

No. A10-1813, 2011 WL 4435325 (Minn. Ct. App. Sept. 26, 2011), review denied,
(Minn. Dec. 21, 2011).
Dahl filed a state petition for post-conviction relief on March 17, 2014, asserting
ineffective assistance of trial and appellate counsel. The post-conviction court held a
three-day evidentiary hearing in January 2015 in which Dahl called five witnesses and
testified on his own behalf. Dahl’s petition for post-conviction relief was denied in a 52page order on September 24, 2015, which the Minnesota Court of Appeals affirmed on
August 15, 2016. The Minnesota Supreme Court denied review on October 26, 2016.
No. A15-1870, Dahl v. State, 2016 WL 4263020 (Minn. Ct. App. Aug. 15, 2016), review
denied, (Minn. Oct. 26, 2016).

II.

PROCEDURAL HISTORY
Dahl filed this habeas petition on October 19, 2016. (Petition for Writ of Habeas

Corpus (“Petition”), Oct. 19, 2016, Docket No. 2.) Dahl moved to appoint counsel on the
same day. (Mot. to Appoint Counsel, Oct. 19, 2016, Docket No. 4.) Overall, Dahl filed
eight documents, including his petition and motion as well as letters and statements,
between October 19 and November 21, 2016. 1 On November 22, 2016, the Magistrate

1

(See Petition; Letter to Clerk’s Office, Oct. 19, 2016, Docket No. 3; Mot. to Appoint
Counsel; Statement of Facts, Oct. 19, 2016, Docket No. 5; Charges Against 8th District Judge,
Oct. 19, 2016, Docket No. 6; Notice, Oct. 27, 2016, Docket No. 9; Notice, Nov. 7, 2016, Docket
No. 11; Letter, Nov. 21, 2016, Docket No. 12.)

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Judge issued an order directing Dahl to submit a written memorandum and affidavit
explaining the full procedural history of his state-court proceedings and showing cause as
to why his petition should not be summarily dismissed pursuant to the statute of
limitations codified in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2244(d). 2 (Order, Nov. 22, 2016, Docket No. 13.) In addition, the Magistrate
Judge denied Dahl’s motion for appointment of counsel, reasoning that
[a]t this early stage of the proceedings . . . the relevant factors skew against
appointment of counsel. Neither the facts nor the legal issues raised in the
petition are so complex as to warrant appointment of counsel at this time.
2

Section 2244(d) sets out the statute of limitations for habeas petitions as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
subsection.

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It appears to the Court that Petitioner has the ability to articulate his claims,
to argue his positions, and to communicate effectively with the Court.
(Id. at 3.)
In response to the Magistrate Judge’s order, Dahl filed seven additional documents
between December 1, 2016, and January 9, 2017, including a timeline of his state-court
proceedings as well as additional explanation of the basis for his claims. 3 Dahl claims
innocence and asserts a number of constitutional errors in his state-court proceedings.
On February 15, 2017, the Magistrate Judge issued an R&R recommending
dismissal with prejudice of Dahl’s habeas petition. 4

(R&R, Feb. 15, 2017, Docket

No. 22.) The Magistrate Judge found that Dahl’s petition is time-barred because it was
filed more than a year after March 21, 2012 – the date that Dahl’s state-court conviction
became final. 5 (Id. at 3 (citing § 2244(d)).) The Magistrate Judge found that while a
pending state petition for post-conviction relief tolls AEDPA’s statute of limitations,

3

(See Letter, Dec. 1, 2016, Docket No. 14; Mem. No 1, Dec. 7, 2016, Docket No. 15;
Mem. No 2, Dec. 7, 2016, Docket No. 16; Aff. of James Donald Dahl, Dec. 7, 2016, Docket
No. 17; Letter, Dec. 12, 2016, Docket No. 18; Letter to Clerk’s Office, Jan. 3, 2017, Docket
No. 19; Letter, Jan. 9, 2017, Docket No. 21.)
4

At no time did the Magistrate Judge order Respondent Eddie Miles, Jr. to file a written
response to Dahl’s petition or objections.
5

The Court concurs with the Magistrate Judge’s calculation of the date Dahl’s conviction
became final. The Minnesota Supreme Court denied review of Dahl’s conviction on
December 21, 2011; thus, Dahl’s conviction became final for purposes of AEDPA ninety days
later, upon the conclusion of the period in which Dahl could have sought review by the United
States Supreme Court. See Boston v. Weber, 525 F.3d 622, 624 (8th Cir. 2008) (“When the state
court of last resort enters a judgment in a direct criminal appeal and the petitioner does not seek a
writ of certiorari, the judgment is final at the conclusion of the ninety days allowed by the
Supreme Court for the filing of such a writ.”). Thus, the one-year statute of limitations for a
federal habeas petition expired in March 2013.

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Dahl filed his post-conviction petition after the AEDPA statute of limitations had already
expired, so there was “no federal limitations period remaining to toll.”

(Id. at 3-4

(quoting Painter v. State of Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001).)
Addressing possible exceptions to the statute of limitations, the Magistrate Judge
concluded that Dahl did not demonstrate that he is entitled to equitable tolling of the
statute of limitations, as described in Holland v. Florida, 560 U.S. 631, 634 (2010),
because Dahl did not show that “he pursued his rights diligently and was unable to pursue
his post-conviction claims for more than a year after his conviction was final.” (Id. at 4.)
The Magistrate Judge also concluded that Dahl’s claim of actual innocence did not
overcome the statute of limitations, as set out in McQuiggin v. Perkins, 133 S. Ct. 1924,
1928 (2013), because Dahl failed to provide any new evidence not present at the original
trial going to Dahl’s innocence. (Id. at 5-6.) Finally, the Magistrate Judge declined to
recommend that the Court issue a Certificate of Appealability based on the conclusion
that “it [is] unlikely that any other court . . . would decide Dahl’s petition any differently
than has been recommended.” (Id. at 7.)
In response to the R&R, Dahl filed eight additional documents, which the Court
construes as objections and supplemental objections. 6

6

(See Letter, Feb. 17, 2017, Docket No. 23; Obj. to R&R, Feb. 27, 2017, Docket No. 24;
Mot. for Dismissal of Denied for Certificate of Appealability, Feb. 27, 2017, Docket No. 25;
Suppl. Obj., Mar. 1, 2017, Docket No. 26; Suppl. Objs., Mar. 6, 2017, Docket No. 27; Suppl.
Objs., Mar. 6, 2017, Docket No. 28; Suppl. Obj., Mar. 8, 2017, Docket No. 29; Suppl. Objs.,
Mar. 9, 2017, Docket No. 30.)

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ANALYSIS
I.

STANDARD OF REVIEW
Upon the filing of an R&R by a Magistrate Judge, “a party may serve and file

specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The district judge must determine de novo
any part of the magistrate judge's disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). On nondispositive matters, the Court
reviews any portion of the Magistrate Judge’s order that has been timely objected to, and
will “modify or set aside any part of the order that is clearly erroneous or is contrary to
law.” Fed. R. Civ. P. 72(a); accord D. Minn. LR 72.2(a).
The Court construes Dahl’s pro se pleadings liberally. Erickson v. Pardus, 551
U.S. 89, 94 (2007). The Court has reviewed in detail all twenty-three documents that
Dahl filed in this case – including both those documents filed before the Magistrate Judge
and the additional documents filed in response to the R&R.

II.

THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT
Habeas relief is available to state prisoners who are “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Through
AEDPA, Congress limited the availability of relief for petitions for habeas corpus in
federal court.

The Court may not grant a habeas petition unless the state court’s

adjudication of the claim

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.
§ 2254(d). The prisoner bears the burden of rebutting the state court’s factual findings
“by clear and convincing evidence.” § 2254(e)(1). As stated above, § 2244(d) sets out
the one-year statute of limitations applicable to this action.

III.

DAHL’S OBJECTIONS TO THE R&R
In his objections, Dahl raises a number of factual arguments about his innocence

that he previously discussed in filings before the Magistrate Judge. Dahl also submits a
few new itemss of information not discussed in the filings before the Magistrate Judge.
First, Dahl alleges that he is gay, and that his trial attorney should have provided this
information to the jury because it indicates that he would have been unlikely to rape a
female victim. (Obj. to R&R, Feb. 27, 2017, Docket No. 24; Suppl. Obj. at 2, Mar. 8,
2017, Docket No. 29.) Second, Dahl alleges that at the time of the events giving rise to
Dahl’s conviction, the victim’s older brother was a male prostitute and a drug dealer who
was intimate with both Dahl and the victim, and the victim accused Dahl of raping her
out of jealousy. (Suppl. Objs. at 1, Mar. 6, 2017, Docket No. 28.) Third, Dahl alleges
that he has been diagnosed with Alzheimer’s disease in prison and therefore he was not

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competent to stand trial for the criminal sexual conduct charges back in 2010. 7 (E.g., id.
at 3.) Below, the Court discusses the two exceptions to the statute of limitations –
equitable tolling and a miscarriage of justice – to determine whether any of the
information Dahl has provided allows the Court to overlook the statute of limitations. 8

A.

Miscarriage of Justice Exception for Claims of Actual Innocence

In McQuiggin v. Perkins, the Supreme Court recognized that a “miscarriage of
justice” exception to the one-year statute of limitations allows for late filing of a habeas
petition asserting actual innocence. 133 S. Ct. 1924, 1931-34 (2013). In order to take
7

In addition to these three details, in one of his letters to the Court, Dahl states for the
first time that there is a recent Supreme Court decision holding that “employing testimony of
minors without first having determined the mental competency of the juvenile on the record
constitutes inadmissible evidence.” (Letter, Jan. 9, 2017, Docket No. 21.) Dahl further states
that the mental competency of the minor victim was never addressed at his trial and therefore he
is entitled to a new trial. (Id.) After conducting an independent search, the Court cannot locate
any Supreme Court case that would afford Dahl the relief he seeks in this letter. Therefore, the
Court concludes that Dahl’s argument about a change in law cannot overcome the Magistrate
Judge’s correct conclusion that the petition is time-barred. Furthermore, Dahl never raised this
issue in state court, and therefore, it is unexhausted.
8

The Court briefly addresses Dahl’s numerous allegations of constitutional defects in his
post-conviction proceedings in state court. The Eighth Circuit has explained that habeas is a
vehicle to assert “a constitutional challenge of the detention itself,” as opposed to challenging the
sufficiency of post-conviction proceedings. King v. Kelley, 797 F.3d 508, 511-12 (8th Cir. 2015)
(quoting Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994)). Thus, “an infirmity in a state postconviction proceeding does not raise a constitutional issue cognizable in a federal habeas
petition.” Id. at 512 (quoting Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990)).
Dahl alleges that in his post-conviction proceedings in state court, the prosecutor
committed misconduct by failing to submit a certain affidavit, the presiding judge was biased
against Dahl and in favor of Dahl’s trial attorney, and Dahl’s trial attorney perjured himself on
the stand. Dahl also argues that when his trial attorney stopped testifying mid-hearing because of
a medical issue and never returned to the stand, Dahl was deprived of a fair hearing. To the
extent that these claims amount to allegations of stand-alone constitutional deprivations in postconviction proceedings, these claims are not cognizable in a federal habeas petition. King, 797
F.3d at 511-12.

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advantage of McQuiggin’s actual innocence “gateway” to overcome the statute of
limitations, a petitioner must “persuade[] the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him [or her] guilty
beyond a reasonable doubt.” Id. at 1928 (quoting Schlup v. Delo, 513 U.S. 298, 329
(1995)). “The gateway should open only when a petition presents ‘evidence of innocence
so strong that a court cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional error.’” Id. at 1936
(quoting Schlup, 513 U.S. at 316). While a petitioner asserting actual innocence need not
“prove diligence to cross a federal court’s threshold . . . . [u]nexplained delay in
presenting new evidence bears on the determination whether the petitioner has made the
requisite showing [of actual innocence].” Id. at 1935.
Here, none of the new information Dahl has provided amounts to evidence that, if
provided to the jury, would have precluded a guilty verdict. First, while Dahl claims he
is gay, this does not negate the possibility that he could have raped a female victim. The
Court cannot conclude that no reasonable juror would have convicted Dahl if presented
with evidence of his sexuality. Second, while Dahl’s theory that the victim and her
brother framed Dahl could have had some persuasive value to the jury, 9 the stringent
McQuiggin standard requires that no reasonable juror would have found Dahl guilty in
light of the new evidence. Based on the information before the Court, the Court cannot

9

Because the Court lacks the underlying records from trial, the Court does not know with
certainty that this theory in fact was not presented to the jury; the Court operates under the
assumption that it was not.

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conclude that Dahl’s theory of the case would have necessarily defeated the prosecution’s
competing factual narrative in the eyes of a reasonable jury. Third, Dahl’s tangential
claims about the victim’s brother’s illegal activities also would not preclude a reasonable
jury from finding Dahl guilty of rape. And lastly, the fact that Dahl alleges a recent
Alzheimer’s diagnosis does not amount to evidence of actual innocence for acts
committed almost a decade ago.
For all of these reasons, the Court finds that Dahl has not provided evidence of
actual innocence, as McQuiggin requires, in order to overcome the one-year statute of
limitations. 133 S. Ct. at 1928.

B.

Equitable Tolling

AEDPA’s statute of limitations is subject to equitable tolling “if [the petitioner]
shows ‘(1) that he [or she] has been pursuing his [or her] rights diligently, and (2) that
some extraordinary circumstance stood in his [or her] way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)); accord Gordon v. Arkansas, 823 F.3d 1188, 1195 (8th Cir. 2016).
Nowhere in any of his filings does Dahl provide any explanation of the delay in
filing his state petition for post-conviction relief, which occurred in March 2014 – one
year after the federal statute of limitations expired. Dahl’s sexuality and theory of his
own innocence do not demonstrate diligence or extraordinary circumstances. And Dahl’s
allegation that he was recently diagnosed with Alzheimer’s in prison does not amount to
a showing that he was diligent in pursuing his rights a number of years ago – between

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March 2012 and March 2014 – or that there was any extraordinary circumstances
preventing filing before March 2013. Without any allegations of diligence and of an
extraordinary circumstance, the Court concludes that Dahl is not entitled to equitable
tolling and therefore his petition is time-barred under § 2244(d).

IV.

DAHL’S OBJECTION TO THE MAGISTRATE JUDGE’S ORDER
DENYING HIS MOTION TO APPOINT COUNSEL
The Magistrate Judge denied Dahl’s motion to appoint counsel on November 22,

2016. (See Order at 3-4.) On December 7, 2016, the Clerk of Court electronically filed a
document Dahl authored that the Court construes as an objection to the order denying the
motion to appoint counsel. (See Mem. No. 2 at 1-2, Dec. 7, 2016, Docket No. 16.) The
Court adds three mail days to the time for filing, see Fed. R. Civ. P. 6(d), and thus
considers Dahl’s objections to the denial of the motion to appoint counsel timely, see
Fed. R. Civ. P. 72(a) (requiring objections to Magistrate Judge orders on nondispositive
issues to be filed within fourteen days).
The Court reviews the Magistrate Judge’s orders on nondispositive issues with
great deference, reversing only if the decision is “clearly erroneous or contrary to law.”
Munt v. Larson, No. 15-582, 2016 WL 4435671, at *9 (D. Minn. Aug. 19, 2016). The
Magistrate Judge applied the correct legal standard, considering the relevant factors as
articulated by the Eighth Circuit. See id. (citing Phillips v. Jasper Cty. Jail, 437 F.3d
791, 794 (8th Cir. 2006)); (Order at 2). While Dahl complains that he has difficulty
piecing together written arguments due to memory loss, the Magistrate Judge concluded
that Dahl “has the ability to articulate his claims, to argue his positions, and to
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communicate effectively with the Court.”

(Order at 3.)

After reviewing Dahl’s

voluminous written filings, the Court finds that the Magistrate Judge’s conclusion on this
point is not clearly erroneous.

The Court also does not find clearly erroneous the

Magistrate Judge’s conclusion that the facts and legal issues raised are not “so complex
as to warrant appointment of counsel at this time.” (Id.) Therefore, the Court will
overrule Dahl’s objections to the Magistrate Judge’s order denying without prejudice
Dahl’s motion to appoint counsel.

V.

CHALLENGE TO CONDITIONS OF CONFINEMENT
In a number of his submissions to the Court, Dahl complains that he is not

receiving medication to which he is entitled to slow the progression of Alzheimer’s.
(Suppl. Objs. at 1, Mar. 6, 2017, Docket No. 27; Suppl. Obj. at 2-3, Mar. 8, 2017, Docket
No. 29; Suppl. Objs. at 2, Mar. 9, 2017, Docket No. 30.) Dahl also sent a letter to the
Clerk of Court asking if he may file a habeas petition to address this issue. (Letter to
Clerk’s Office, Jan. 3, 2017, Docket No. 19.) The Court briefly addresses the issue here.
Challenges to the conditions of confinement, as opposed to the length or legality
of detention, are not cognizable claims in habeas petitions in the Eighth Circuit. Spencer
v. Haynes, 774 F.3d 467, 469-70 (8th Cir. 2014). Based on the information before the
Court, it appears that Dahl may at some point have a viable claim under the Eighth and
Fourteenth Amendments that prison officials have been deliberately indifferent to his
serious medical needs – a claim properly brought in a civil rights lawsuit under 42 U.S.C.
§ 1983. See, e.g., Dadd v. Anoka County., 827 F.3d 749 (8th Cir. 2016) (considering a

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prisoner’s claim of deliberate indifference to serious medical need under the framework
of § 1983).
In Spencer v. Haynes, a pro se federal prisoner improperly attempted to use a
§ 2255 petition as a vehicle to raise an Eighth Amendment challenge to his conditions of
confinement. 10 774 F.3d at 469-70. The Eighth Circuit held that the district court had
erred in dismissing a habeas petition when it could have liberally construed the petition
and “recharacterize[d the petitioner’s] claim into the correct procedural vehicle for the
claim asserted.” Id. at 471.
The Spencer court further directed that instead of automatically converting such
petitions to the proper civil rights vehicle sua sponte, district courts should “first obtain
the consent of the pro se individual before converting their claims.” Id. This is because
there may be some detriment to a petitioner to have a habeas petition automatically
converted to a civil rights case subject to the requirements of the Prison Litigation
Reform Act (“PLRA”).

Under the PLRA, before filing a civil rights complaint, a

prisoner must exhaust all available administrative remedies, 42 U.S.C. § 1997e(a), and
pay the full $350.00 filing fee, 28 U.S.C. § 1915(b), either up front or installments over
time. Additionally, the PLRA contains a three strikes provision, under which there is a

10

The standard articulated in Spencer also applies to habeas petitions filed by state
prisoners pursuant to § 2254. See, e.g., Carter v. Minnesota, No. 16-3455, 2016 WL 6916842, at
*1 (D. Minn. Oct. 25, 2016) (applying Spencer in the context of a § 2254 petition), R&R
adopted, 2016 WL 6916807 (D. Minn. Nov. 22, 2016).

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“strike” for each lawsuit or appeal filed that is dismissed because it is frivolous,
malicious, or does not state a proper claim. § 1915(g).
Here, although the Court finds that Dahl may be able to state a viable claim under
§ 1983 based on the prison’s alleged failure to provide medication, even under a liberal
construction, Dahl’s filings fail as a matter of law to state such a claim here. 11 Therefore,
instead of giving Dahl the option of converting this action to a § 1983 civil rights lawsuit,
only to dismiss that suit for failure to state a claim which would result in a strike, the
Court will dismiss Dahl’s conditions-of-confinement claim without prejudice.

See

Spencer, 774 F.3d at 471 (explaining that recharacterization of a habeas petition as a civil
rights lawsuit is appropriate when the habeas petition states a potentially viable civil
rights claim). 12 Dahl is free to file a civil rights lawsuit under § 1983, subject to the

11

“To state a claim for deliberate indifference, [Dahl] must show that he was suffering
from an objectively serious medical need, and that prison officials knew of the need but
deliberately disregarded it.” Dadd, 827 F.3d at 755. While Dahl does allege that he has
Alzheimer’s disease, which is likely sufficient to satisfy the requirement that a petitioner allege
an “objectively serious medical need,” Dahl has not alleged facts about whether prison officials
deliberately disregarded Dahl’s medical need. Denying a prisoner access to a prescribed
medication may amount to deliberate disregard of the prisoner’s medical need. Id. at 757. Here,
while Dahl argues that he is entitled to various medications that he is not getting, he has not
alleged that a doctor has prescribed or recommended any medications. Dahl may possess
additional information relevant to a charge of deliberate disregard of medical need, including
allegations about specific medications that his doctor has prescribed or recommended and which
prison officials refuse to provide. Dahl may include any such allegations in a complaint pursuant
to § 1983 if he so chooses.
12

In addition, there is no indication that Dahl has exhausted administrative remedies for
his conditions-of-confinement claim. Converting the action to a § 1983 case would commit Dahl
to paying a $350.00 filing fee even though it appears there is little likelihood that the case would
not soon be dismissed for failure to exhaust.

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requirements of the PLRA, arguing that prison officials are deliberately disregarding a
serious medical need by failing to provide him with doctor-recommended medication.

VI.

CERTIFICATE OF APPEALABILITY
On February 27, 2017, Dahl filed a document styled as a motion to dismiss the

denial of a certificate of appealability. (Mot. for Dismissal of Denied for Certificate of
Appealability, Feb. 27, 2017, Docket No. 25.)

The document does not contain an

explanation of why the Magistrate Judge erred, in Dahl’s view, in recommending that the
Court decline to issue a certificate of appealability. Further, the Court finds no error in
the Magistrate Judge’s conclusion that it is unlikely that another court would decide the
issues herein differently. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“Where a
plain procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.”).
Thus, the Court will overrule Dahl’s objection to the R&R’s recommendation that the
Court decline to issue a certificate of appealability.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES James Donald Dahl’s Objections [Docket Nos. 23-30], and
ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 22]. IT
IS HEREBY ORDERED that:

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1.

Dahl’s claim that his conditions of confinement are unconstitutional is

DISMISSED without prejudice. All remaining claims in Dahl’s Petition for Writ of
Habeas Corpus [Docket No. 2] and supplemental filings [Docket Nos. 3-6, 9, 11-12, 1419, 21, 23-30] are DISMISSED with prejudice.
2.

The Court does not grant a Certificate of Appealability pursuant to 28

U.S.C. § 2253(c)(1)(A).
IT IS FURTHER HEREBY ORDERED that:
3.

Dahl’s objections to the Magistrate Judge’s order denying Dahl’s Motion to

Appoint Counsel [Docket No. 16] are OVERRULED, and the Court AFFIRMS the
Order of the Magistrate Judge [Docket No. 13.]

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: August 20, 2017
at Minneapolis, Minnesota.

_____________s/John R. Tunheim__________
JOHN R. TUNHEIM
Chief Judge
United States District Court

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