Rossberg v. Miles

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Petitioner Keith R. Rossberg's objections (Doc. No. 15 ) to Magistrate Judge Steven E. Rau's October 24, 2017 Report and Recommendation are OVERRULED. 2. Magistrate Judge Steven E. Rau's O ctober 24, 2017 Report and Recommendation (Doc. No. 14 ) is ADOPTED. 3. Respondent Warden Eddie Miles's Motion to Dismiss Petition for Writ of Habeas Corpus (Doc. No. 9 ) is GRANTED. 4. Petitioner Keith Richard Rossberg's Petition Under 2 8 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. No. 1 ) is DENIED.5. This action is DISMISSED WITH PREJUDICE. 6. No certificate of appealability will issue. (Written Opinion). Signed by Judge Donovan W. Frank on 11/20/2017. (BJS) Modified text on 11/20/2017 (ACH). cc: Rossberg

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Keith Richard Rossberg,

Civil No. 17-719 (DWF/SER)

Petitioner,
v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Warden Eddie Miles,
Respondent.

This matter is before the Court upon Petitioner Keith Richard Rossberg’s
objections (Doc. No. 15) to Magistrate Judge Steven E. Rau’s October 24, 2017 Report
and Recommendation (Doc. No. 14) insofar as it recommends that: (1) Respondent
Warden Eddie Miles’s Motion to Dismiss Petition for Writ of Habeas Corpus be granted;
(2) Petitioner Keith Richard Rossberg’s Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody be denied; (3) that this action be dismissed
with prejudice; and (4) if the Report and Recommendation is adopted, a certificate of
appealability not be issued, and judgment be entered accordingly. Respondent Warden
Eddie Miles filed a response to Petitioner’s objections on November 8, 2017. (Doc.
No. 17.)
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. In the Report and Recommendation, Magistrate
Judge Rau concluded that Petitioner’s Petition is untimely, and that equitable tolling does
not apply. Petitioner argues that the Magistrate Judge made factual errors in the
discussion of the background of the case, and again argues that equitable tolling should
apply. Having carefully reviewed the record, the Court concludes that Petitioner’s
objections do not warrant departure from the Magistrate Judge’s recommendations. In
particular, the Magistrate Judge properly calculated the time that passed prior to
Petitioner’s filing of the present action and concluded that equitable tolling does not
apply.
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:
ORDER
1.

Petitioner Keith R. Rossberg’s objections (Doc. No. [15]) to Magistrate

Judge Steven E. Rau’s October 24, 2017 Report and Recommendation are
OVERRULED.
2.

Magistrate Judge Steven E. Rau’s October 24, 2017 Report and

Recommendation (Doc. No. [14]) is ADOPTED.
3.

Respondent Warden Eddie Miles’s Motion to Dismiss Petition for Writ of

Habeas Corpus (Doc. No. [9]) is GRANTED.

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4.

Petitioner Keith Richard Rossberg’s Petition Under 28 U.S.C. § 2254 for

Writ of Habeas Corpus by a Person in State Custody (Doc. No. [1]) is DENIED.
5.

This action is DISMISSED WITH PREJUDICE.

6.

No certificate of appealability will issue.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 20, 2017

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

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