Okon v. Knutson

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Petitioner Enamidem Celestine Okon's objections (Doc. No. 17 ) to Magistrate Judge Tony N. Leung's January 22, 2019 Report and Recommendation are OVERRULED. Magistrate Judge Tony N. Leung� 39;s January 22, 2019 Report and Recommendation (Doc. No. 14 ) is ADOPTED. Respondent's Motion to Dismiss (Doc. No. 11 ) is GRANTED. This matter is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. Petitioner's Application for COA and/or Remand (Doc. No. 21 ) is DENIED. A certificate of appealability will not be issued. (Written Opinion). Signed by Judge Donovan W. Frank on 3/20/2019. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Enamidem Celestine Okon,

Civil No. 18-191 (DWF/TNL)

Petitioner,
v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Nate Knutson,
Respondent.

This matter is before the Court upon Petitioner Enamidem Celestine Okon’s
(“Petitioner”) objections (Doc. No. 17) to Magistrate Judge Tony N. Leung=s January 22,
2019 Report and Recommendation (Doc. No. 14) insofar as it recommends that:
(1) Respondent’s Motion to Dismiss be granted; (2) this matter be dismissed without
prejudice for lack of jurisdiction; and (3) no certificate of appealability be issued.
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, the Magistrate Judge
considered Petitioner’s habeas petition under § 2254, finding that Petitioner’s substantive
arguments were presented and addressed in a prior petition and that the dismissal of the
Petition is warranted. As to Petitioner’s argument regarding his federal-law
confrontation rights, the Magistrate Judge explained that Petitioner received review of
that issue. The Magistrate Judge recommends dismissal of the present petition because
its substantive grounds have been previously presented to this Court in a prior application

and § 2244(b) compels dismissal, without prejudice, for lack of jurisdiction. In addition,
the Magistrate Judge discussed Petitioner’s arguments in response to Respondent’s
motion to dismiss, including Petitioner’s “ends of justice” argument and his position that
the successive-petition bar of § 2244(b)(1) should not apply, and found them unavailing.
Finally, the Magistrate Judge recommended that Petitioner not be granted a certificate of
appealability (“COA”) in this matter.
Petitioner objects to the Report and Recommendation, arguing that his first ground
for relief is a “new error” and cannot be construed as a second or successive application.
In addition, Petitioner objects on the grounds that the “ends of justice” have not been
satisfied because the Minnesota state court did not conduct a harmless-error analysis
under the confrontation clause and because the Court should apply the “substantial and
injurious effect” to the confrontation clause claim. Finally, Petitioner argues that the
Court should remand the confrontation clause issue back to the state court or that this
Court should reconsider the merits of the confrontation clause claim under the “ends of
justice” standard and grant habeas relief.
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). After this review, the Court finds no reason to depart from the Magistrate
Judge’s recommendations, which are both factually and legally correct. In particular, the
Magistrate Judge correctly determined that the substantive grounds of the Petition were

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previously presented in a prior application and, therefore, the Court lacks jurisdiction
under § 2244(b)(1)’s bar on second-or-successive claims. Petitioner has separately filed
an Application for COA and/or Remand. (Doc. No. 21.) An appeal cannot be taken
from a final order in a habeas corpus proceeding without a COA. 28 U.S.C.
§ 2253(c)(1)(B); Fed. R. App. P. 22(b)(1). A court cannot grant a COA unless the
applicant has made “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The Court has reviewed the Magistrate Judge’s recommendation
that no COA be granted and has separately considered whether issuance of a COA is
appropriate. After a careful review of the record, the Court concludes that the Petitioner
has not raised any issue that is “debatable among reasonable jurists” or that “deserve[s]
further proceedings.” Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994) (citing
Lozado v. Deeds, 498 U.S. 430, 432 (1991) (per curiam)). Petitioner has not, therefore,
made the “substantial showing of the denial of a constitutional right” necessary for the
issuance of a COA. 28 U.S.C. § 2253(c)(2). Thus, Petitioner’s Application for COA is
properly denied. Moreover, remand is unwarranted.
Therefore, as discussed above and based upon the de novo review of the record
and the arguments and submissions of the parties, and the Court being otherwise duly
advised in the premises, the Court hereby enters the following:

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ORDER
1.

Petitioner Enamidem Celestine Okon’s objections (Doc. No. [17]) to

Magistrate Judge Tony N. Leung’s January 22, 2019 Report and Recommendation are
OVERRULED.
2.

Magistrate Judge Tony N. Leung’s January 22, 2019 Report and

Recommendation (Doc. No. [14]) is ADOPTED.
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Respondent’s Motion to Dismiss (Doc. No. [11]) is GRANTED.

4.

This matter is DISMISSED WITHOUT PREJUDICE for lack of

jurisdiction.
5.

Petitioner’s Application for COA and/or Remand (Doc. No. [21]) is

DENIED.
6.

A certificate of appealability will not be issued.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 20, 2019

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

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