Linehan v. Piper

Filing 9

MEMORANDUM OPINION AND ORDER overruling 7 Objection and adopting 6 Magistrate Judge's July 25, 2017 Report and Recommendation; dismissing without prejudice 1 Petition for Writ of Habeas Corpus; denying as moot 3 request to proceed in forma pauperis (Written Opinion) Signed by Judge Susan Richard Nelson on 11/9/2017. (LMT)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Dennis D. Linehan,

Case No. 0:17-cv-04355 (SRN/HB)

Petitioner,
MEMORANDUM OPINION
AND ORDER

v.
Emily Johnson Piper,
Respondent.

Dennis D. Linehan, Pro Se Petitioner.
Matthew Frank, Esq., Minnesota Attorney General’s Office, 445 Minnesota Street, Suite
1800, Saint Paul, Minnesota 55101, for Respondent.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter is before the Court for consideration of Petitioner’s Objection [Doc. No.

7] to Magistrate Judge Hildy Bowbeer’s October 17, 2017 Report and Recommendation
[Doc. No. 6] (“R&R”). The Magistrate Judge recommended that: (1) Petitioner’s Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2241 [Doc. No. 1] (“Petition”) be dismissed
without prejudice; (2) Petitioner’s application to proceed in forma pauperis [Doc. No. 3] be
denied; and (3) no certificate of appealability be granted. For the reasons set forth below,
the Court overrules Petitioner’s Objection and adopts the R&R in its entirety.

1

II.

BACKGROUND
The R&R documents the relevant factual and procedural background of this case,

and the Court incorporates it by reference. Briefly stated, Petitioner Dennis Linehan
(“Petitioner”) is currently detained indefinitely by the State of Minnesota, pursuant to a
1995 judicial determination that he is a sexually dangerous person. See In re Linehan, 594
N.W.2d 867, 870 (Minn. 1999). In 2000, Petitioner sought habeas corpus relief in this
District under 28 U.S.C. § 2254. The District Court denied relief, but issued a certificate of
appealability with regard to one issue. See Linehan v. Milczark, 315 F.3d 920, 921 (8th Cir.
2003). The Eighth Circuit Court of Appeals affirmed the denial of § 2254 relief. Id.
On September 21, 2017, Petitioner filed the instant Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 in the United States District Court for the District of
Minnesota, challenging his detention as violating his due process rights, the protection
against double jeopardy, and separation of powers. (See Petition, at 2.) Petitioner also
requested leave to proceed in forma pauperis.
On October 17, 2017, the Magistrate Judge recommended that Petitioner’s Petition
be dismissed without prejudice. (R&R, at 4.) On November 2, 2017, Petitioner filed his
Objection to the Magistrate Judge’s R&R. (Objection to Magistrate Judge’s Proposed
Findings and Recommendations (“Objection”).)
III.

DISCUSSION
A. Standard of Review
A party “may file and serve specific written objections to a magistrate judge’s

proposed findings and recommendations.” D. Minn. LR 72.2(b)(1). The district court will
2

review de novo those portions of the R&R to which an objection is made, and it “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); D. Minn. LR
72.2(b)(3).
B. Applicable Law
“[A] district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgement of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Petitioner is being held pursuant to the judgment of a state court, so his
habeas petition is governed by § 2254. See, e.g., Smallwood v. Jesson, No. 13-cv-63, 2013
WL 4781021, at *2 (D. Minn. Sept. 5, 2013) (stating that a challenge to civil detention of
sexually dangerous persons falls under 28 U.S.C. § 2254).
A federal district court may not entertain a “second or successive” habeas corpus
petition under § 2254 unless the petitioner first obtains authorization from the appropriate
court of appeals. 28 U.S.C. § 2244(3)(A). Authorization for a second or successive § 2254
petition is limited to claims relying on a new rule of constitutional law that applies
retroactively or on newly discovered evidence showing that the petitioner is actually
innocent. Id. § 2244(2).
C. Analysis
The Magistrate Judge reasoned that the Court does not have subject matter
jurisdiction over this claim because the Eighth Circuit Court of Appeals has not issued an
order authorizing this Court to consider his second or successive § 2254 habeas corpus
3

petition. (R&R, at 2.) The Magistrate Judge observed that Petitioner has not sought such an
order from the Eighth Circuit, and recommended dismissal without prejudice to allow
Petitioner that opportunity. (Id. at 3.)
Petitioner objects to the Magistrate Judge’s recommendation that his Petition be
dismissed for lack of jurisdiction. (Objection, at 1-2.) Petitioner argues that his Petition
should be governed by 28 U.S.C. § 2241, not 28 U.S.C. § 2254. (Id. at 1.) But Petitioner
does not dispute that he is being held pursuant to the judgment of a state court, and clear
statutory language states that petitions from persons detained pursuant to the judgments of
state courts are subject to § 2254. 28 U.S.C. § 2254(a).
Petitioner further objects that his Petition is not “second or successive” because it
concerns new and substantially different information as compared to his previous § 2254
petition. (Id. at 2.) Even if this is the case, it is for the Eighth Circuit to decide whether
Petitioner’s new information meets the statutory requirements for a second or successive
§ 2254 petition. 28 U.S.C. § 2244(2), (3). Further, the Court agrees with the Magistrate
Judge’s determination that Petitioner’s Petition does not appear to meet the statutory
requirements for a second or successive petition. (R&R, at 3.)
The Court agrees with the Magistrate Judge’s analysis and adopts it in full. (See
R&R, at 2-3.) For these reasons, the Court dismisses Petitioner’s motion for habeas corpus
relief.
In order to appeal an adverse decision on a § 2254 petition, a petitioner must first
obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
A court cannot grant a certificate of appealability unless “the applicant has made a
4

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
Court has considered whether the issuance of a certificate is appropriate here and finds that
no issue raised is “debatable among reasonable jurists.” Fleiger v. Delo, 16 F.3d 878, 88283 (8th Cir. 1994) (citing Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam)).
Accordingly, the Court declines to issue a Certificate of Appealability.
IV.

ORDER
The Court OVERRULES Petitioner’s Objection [Doc. No. 7] and ADOPTS the

Magistrate Judge’s July 25, 2017, Report and Recommendation [Doc. No. 6]. Accordingly,
IT IS HEREBY ORDERED that:
1. Petitioner’s Petition for Writ of Habeas Corpus [Doc. No. 1] is DISMISSED
WITHOUT PREJUDICE for lack of jurisdiction;
2. Petitioner’s request to proceed in forma pauperis [Doc. No. 3] is DENIED AS
MOOT; and
3. A certificate of appealability is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated:

November 9, 2017

s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge

5