Wilkes v. Minnesota, State of
ORDER ADOPTING REPORT AND RECOMMENDATIONS (Written Opinion). Signed by Judge Patrick J. Schiltz on 3/6/2018. (ECW) Modified text on 3/6/2018 (ACH). cc: Wilkes
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 16‐CV‐4229 (PJS/SER)
STATE OF MINNESOTA,
Andrea Wilkes, pro se.
Jean E. Burdorf, Assistant County Attorney, HENNEPIN COUNTY
ATTORNEY’S OFFICE, for defendant.
Plaintiff Andrea Wilkes is currently serving a 180‐month sentence in a county jail
for sexual assault. After unsuccessfully appealing his conviction to the Minnesota
Court of Appeals and unsuccessfully petitioning the Minnesota Supreme Court for
review, Wilkes brought a federal habeas petition under 28 U.S.C. § 2254.
This matter is before the Court on Wilkes’s objection1 to Magistrate Judge Steven
E. Rau’s November 30, 2017 Report and Recommendation (“R&R”), which recommends
granting the State of Minnesota’s motion to dismiss Wilkes’s § 2254 petition. The Court
has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Wilkes’s December 14, 2017 filing is not labeled as an objection, but it appears to
argue that Wilkes’s petition should not be dismissed for the reasons explained in the
R&R. Therefore, the Court will treat it as an objection to the R&R.
Based on that review, the Court overrules Wilkes’s objection, adopts Judge Rau’s R&R,
and dismisses Wilkes’s § 2254 petition.
Only two matters merit comment:
First, the R&R concluded that Wilkes’s § 2254 petition must be dismissed because
Wilkes’s current claims are unexhausted and procedurally defaulted. See ECF No. 22
at 3‐8. In response, Wilkes argues that “The Pro Se Brief” that he filed in his state court
appeal and his “Four Amended [§ 2254] Petitions All Are On Common Ground With
The Penalties Of False Imprisonment, And Falsely Accused, And False Witness Being
Consistently Raised.” ECF No. 23 at 5. Even if this is true, however, § 2254(b)(1)
requires a petitioner to “‘fairly present’ his claim in each appropriate state court
(including a state supreme court with powers of discretionary review)” before filing a
§ 2254 petition. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (emphasis added). Wilkes did
not file his pro se brief with the Minnesota Supreme Court or otherwise present his
current claims to the Minnesota Supreme Court. Therefore, Wilkes did not properly
exhaust his current claims before bringing his § 2254 petition.
Second, the R&R concluded that Wilkes’s first amended petition was the
“operative” petition because Wilkes did not seek or receive the State’s consent or the
court’s leave to file any of his three later amended petitions. See Fed. R. Civ. P. 15(a);
ECF No. 22 at 5. Out of an abundance of caution, however, the Court has examined all
six petitions that Wilkes has filed in this case, including a fifth amended petition that
Wilkes filed (also in violation of Rule 15(a)) after Judge Rau issued his R&R. See ECF
Nos. 1, 10, 16, 21, 23, 24. Wilkes’s petitions are largely incomprehensible, but his main
argument appears to be that the jury erred when it credited the testimony of his victim
that Wilkes kidnaped her and forced her to perform oral sex on him instead of crediting
the testimony of Wilkes that his victim consented to performing oral sex on him. See,
e.g., ECF No. 24 at 4. These allegations, without more, are not enough to state a claim
that Wilkes is currently being imprisoned in “violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a).
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Plaintiff’s objection [ECF No. 23] is OVERRULED and Judge Rau’s R&R
[ECF No. 22] is ADOPTED.
Defendant’s motion to dismiss [ECF No. 12] is GRANTED.
Plaintiff’s petitions [ECF Nos. 1, 10, 16, 21, 23, 24] are DISMISSED
No certificate of appealability will be issued.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 6, 2018
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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