Castillo-Alvarez v. Miles et al
ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Patrick J. Schiltz on December 1, 2017. (CLG) cc: Juan Humberto Castillo-Alvarez. Modified on 12/1/2017 (lmb).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 17‐CV‐3324 (PJS/TNL)
EDDIE MILES, MCF‐Stillwater, and
LORI SWANSON, State Attorney
On July 26, 2017, petitioner Juan Humberto Castillo‐Alvarez filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254 and applied for leave to proceed in forma
pauperis (“IFP”). ECF Nos. 1‐2. In a Report and Recommendation (“R&R”) dated
August 4, 2017, Magistrate Judge Tony N. Leung recommends dismissing Castillo’s
petition for lack of jurisdiction and denying Castillo’s IFP application. ECF No. 4. This
matter is before the Court on Castillo’s objection to the R&R and on his motion for a
certificate of appealability.1 ECF Nos. 5‐6. The Court has conducted a de novo review.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Based on that review, the Court
Castillo also filed an affidavit asking the Court to excuse the untimely filing of
his objection. ECF No. 7. Castillo’s objection was timely, however, and the Court has
given it full consideration.
overrules Castillo’s objection, adopts Judge Leung’s R&R, and denies Castillo’s motion
for a certificate of appealability.
As Judge Leung explains, the Court does not have jurisdiction to hear a “second
or successive” § 2254 petition unless the petitioner first obtains authorization from the
Eighth Circuit. 28 U.S.C. § 2244(b)(3)(A). Castillo’s petition is plainly “second or
successive.” See Crawford v. Minnesota, 698 F.3d 1086, 1089 (8th Cir. 2012) (habeas
petition is second or successive if the petitioner “rais[es] a claim in a subsequent
petition that he could have raised in his first”) (quotation marks omitted). The Court
cannot identify any argument that was not already raised—or could not have been
raised—in Castillo’s first petition, which Chief Judge John R. Tunheim denied in 2015.
Compare ECF No. 1, with Tunheim Order, Castillo‐Alvarez v. Smith, No. 14‐0542
(JRT/JSM) (Oct. 23, 2015), ECF No. 21 at 7 (outlining asserted grounds for relief).
Castillo argues that his petition is not “second or successive” because, he says,
his first petition was dismissed without prejudice for failure to exhaust state remedies.
Castillo is incorrect. Judge Tunheim dismissed Castillo’s first petition with prejudice
after finding his claim based on the Extradition Treaty between the United States and
Mexico to be without merit and after finding his other claims to be procedurally
defaulted. As a result, Castillo’s entire first petition is deemed to have been rejected on
the merits, and his subsequent petition is deemed to be “second or successive.” See
McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“A prior petition that has been
dismissed without prejudice for failure to exhaust state remedies leaves open the
possibility for future litigation and has not, therefore, been adjudicated on the merits.
In contrast, the dismissal of a first petition with prejudice because of a procedural
default (and a failure to show cause and prejudice) forecloses the possibility that the
underlying claims will be addressed by a federal court. Such a dismissal therefore
constitutes a disposition on the merits and renders a subsequent petition second or
successive for purposes of 28 U.S.C. § 2244(b).”) (citations omitted); Graham v. Costello,
299 F.3d 129, 133 (2d Cir. 2002) (“[W]hen a first petition is dismissed without prejudice
for failure to exhaust state remedies, a subsequently filed petition is not ‘second or
successive.’ . . . Conversely, when a prior petition is denied because the claim raised is
procedurally defaulted (i.e., the petitioner failed to raise the claim on direct appeal and
has not made a showing of cause and prejudice for that failure), the denial is ‘on the
merits,’ rendering a subsequently filed petition ‘second or successive.’”) (citations
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES defendant’s objection [ECF No. 5] and ADOPTS the R&R
[ECF No. 4]. IT IS HEREBY ORDERED THAT:
This action is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
Defendant’s application to proceed in forma pauperis [ECF No. 2] is
Defendant’s motion for a certificate of appealability [ECF No. 6] is
DENIED. No certificate of appealability will be issued.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 1, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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