Parker v. Miles
ORDER denying 11 Motion for Certificate of Appealability(Written Opinion) Signed by Senior Judge David S. Doty on 6/27/2017. (DLO) Modified text on 6/27/2017 (ACH). cc: Steven Todd Parker
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-1369(DSD/LIB)
Steven Todd Parker,
Eddie Miles, Warden,
This matter is before the court upon pro se petitioner Steven
recommendation (R&R) of Magistrate Judge Leo I. Brisbois.
report, the magistrate judge recommended that Parker’s habeas
petition be dismissed without prejudice. On June 13, 21 days after
the R&R was filed, the court, having received no objections,
adopted the R&R and dismissed the case without prejudice.
15, 2017, Parker filed an objection to the R&R, which was signed on
June 11, 2017.
Parker argues that his objection is timely because
he did not receive the R&R until May 29.
In the interest of
fairness, the court will consider Parker’s objections to the R&R,
and thus vacates the previous order and files this amended order
regarding the R&R.
The court reviews the R&R de novo. 28 U.S.C. § 636 (b)(1)(C);
D. Minn. LR 72.2(b).
After a careful 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.
In 2007, Parker was convicted of
first-degree burglary, two counts of second-degree burglary, theft
of a motor vehicle, and fleeing a police officer.
See State v.
Parker, No. A09-354, 2009 WL 3736120, at *1 (Minn. Ct. App. Nov.
10, 2009); State v. Parker, No. A07-0968, 2008 WL 2965925, at *1
(Minn. Ct. App. Aug. 5, 2008).
On direct appeal, the court of
appeals remanded for re-sentencing.
See Parker, 2008 WL 2965925,
at *11. Parker was re-sentenced to 360 months’ imprisonment, which
was affirmed by the court of appeals. See Parker, 2009 WL 3736120,
In 2011, Parker filed a habeas petition pursuant to 28
U.S.C. § 2254, which was denied with prejudice because all but one
of his claims were procedurally defaulted, and his remaining claim
See Parker v. King, No. 11-100, 2011 WL 7031112 (D.
Minn. Sept. 22, 2011) (R&R adopted by Parker v. King, No. 11-100,
2012 WL 116038 (D. Minn. Jan. 13, 2012)).
On April 25, 2017, Parker filed a second habeas petition, and
on June 15, 2017, the magistrate judge recommended that the
petition be denied without prejudice because Parker failed to
obtain authorization from the Eighth Circuit Court of Appeals to
file a second or successive habeas petition pursuant to 28 U.S.C.
Parker now objects to the R&R.
Parker contends that his petition should not be considered
second or successive because his first petition was dismissed on
procedural grounds. In support of his argument, Parker cites Slack
v. McDaniel, 529 U.S. 473 (2000), which held that a petition that
considered to be a second or successive petition, even if the
Id. at 487.
But the holding in Slack only applies to
situations where “a prisoner whose habeas petition was dismissed
for failure to exhaust state remedies and ... then ... exhaust[s]
those remedies and return[s] to federal court.”
internal quotation marks omitted).
Id. (citation and
In other words, Slack applies
to unexhausted claims - when a petitioner can still return to state
court - and not procedurally defaulted claims - when no state
remedies are available.
See Coleman v. Thompson, 501 U.S. 722,
729-32 (1991) (citation and internal quotation marks omitted) (“A
habeas petitioner who has defaulted his federal claims in state
court meets the technical requirements for exhaustion; there are no
state remedies any longer available to him.”).
Here, the court
dismissed Parker’s first habeas petition with prejudice because his
claims were procedurally defaulted. As a result, the R&R correctly
concluded that Parker’s petition is second or successive and that
it should be dismissed without prejudice for failure to obtain
authorization from the court of appeals.1
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, 529 U.S. at 483–84 (2000). As
discussed, the court is firmly convinced that Parker’s petition is
an unauthorized second or successive petition and that reasonable
jurists could not differ.
A certificate of appealability is not
Accordingly, IT IS HEREBY ORDERED that:
The court’s previous order [ECF No. 8] is vacated;
The objection [ECF No.10]to the report and recommendation
The report and recommendation [ECF No. 7] is adopted in
The court does not address Parker’s remaining objections
because they are either irrelevant or reach the merits of his
The petition for a writ of habeas corpus [ECF No. 1] is
dismissed without prejudice; and
5. The motion for a certificate of appealability [ECF No. 11]
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 27, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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