Duwenhoegger v. Miles
ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED THAT: 1.This action is DISMISSED IN PART WITH PREJUDICE and DISMISSED IN PART WITHOUT PREJUDICE as follows: a. The petition is DISMISSED WITH PREJUDICE as untimely insofar as it chall enges petitioner's convictions for burglary, interference with a 911 call, and trespass. b. The petition is DISMISSED WITHOUT PREJUDICE insofar as it challenges petitioner's convictions for conspiracy to commit first-degree murder. 2. No certificate of appealability will issue. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on May 23, 2017. (CLG) cc: Duwenhoegger on 5/23/2017 (LPH).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 17‐CV‐1432 (PJS/TNL)
EDDIE MILES, Warden,
Jerry Duwenhoegger, pro se.
James B. Early and Matthew Frank, MINNESOTA ATTORNEY GENERAL’S
OFFICE, for respondent.
Almost 20 years ago, petitioner Jerry Duwenhoegger was convicted in state court
of burglary and related crimes (“the burglary convictions”). At about the same time, in
a separate prosecution, Duwenhoegger was convicted in state court of two counts of
conspiracy to commit first‐degree murder (“the conspiracy convictions”). He now
petitions for habeas relief under 28 U.S.C. § 2254 with respect to all of these convictions.
On May 5, 2017, Magistrate Judge Tony N. Leung issued a Report and
Recommendation (“R&R”) that recommends dismissing Duwenhoegger’s petition
partly with and partly without prejudice. Specifically, Judge Leung recommends
dismissing with prejudice all claims relating to the burglary convictions because, as to
those convictions, the petition is untimely under 28 U.S.C. § 2244(d). Judge Leung
further recommends dismissing without prejudice all claims relating to the conspiracy
convictions because, as to those convictions, the petition is a second‐or‐successive
petition for which Duwenhoegger has failed to obtain authorization from the United
States Court of Appeals for the Eighth Circuit. See 28 U.S.C. § 2244(b)(3).
This matter is before the Court on Duwenhoegger’s objection to the R&R. The
Court has conducted a de novo review. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Based on that review, the Court overrules Duwenhoegger’s objection and adopts the
Duwenhoegger argues that his petition is timely because (1) the state has
prevented him from earlier seeking habeas relief and (2) he is (partly) relying on a
purportedly new rule of constitutional law announced in Lafler v. Cooper, 566 U.S. 156
(2012), and Missouri v. Frye, 566 U.S. 133 (2012). See 28 U.S.C. § 2244(d). Duwenhoegger
also challenges the constitutionality of the restrictions on second‐or‐successive petitions
found in § 2244(b) and the statute of limitations found in § 2244(d).
As Judge Leung noted, Duwenhoegger has for many years been a very active
litigant in both state and federal courts. Obviously, then, he cannot show that the state
prevented him from timely seeking federal habeas relief. Likewise, Duwenhoegger
cannot rely on Lafler or Frye to re‐start the statute of limitations, as those cases did not
announce a new constitutional right and are not retroactive.1 See Williams v. United
States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam). Finally, Duwenhoegger’s
challenges to the constitutionality of 28 U.S.C. § 2244(b) and (d) are without merit.
Felker v. Turpin, 518 U.S. 651, 663‐64 (1996) (rejecting constitutional challenge to
§ 2244(b)); Denton v. Norris, 104 F.3d 166, 167 (8th Cir. 1997) (same); Hirning v. Dooley,
209 F. App’x 614, 615 (8th Cir. 2006) (per curiam) (rejecting constitutional challenge to
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES petitioner’s objection [ECF No. 9] and ADOPTS the R&R [ECF
No. 7]. IT IS HEREBY ORDERED THAT:
This action is DISMISSED IN PART WITH PREJUDICE and DISMISSED
IN PART WITHOUT PREJUDICE as follows:
The petition is DISMISSED WITH PREJUDICE as untimely insofar
as it challenges petitioner’s convictions for burglary, interference
with a 911 call, and trespass.
The Court notes that, even if Lafler and Frye were retroactive, Duwenhoegger’s
petition would likely be untimely anyway.
The petition is DISMISSED WITHOUT PREJUDICE insofar as it
challenges petitioner’s convictions for conspiracy to commit first‐
No certificate of appealability will issue.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 23, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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