Gibbons v. Knutson

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Petitioner Andrew James Gibbons's objections (Doc. No. 49 ) to Magistrate Judge Hildy Bowbeer's January 29, 2019 Report and Recommendation are OVERRULED. Magistrate Judge Hildy Bowbeer's January 29, 2019 Report and Recommendation (Doc. No. 48 ) is ADOPTED. Petitioner Andrew James Gibbons's Motion to Consider Supporting Memorandum to Respondents Answer and to Supplement and Amend, in part, the § 2254 Memorandum (Doc. No. 33 ) is GRANTED. Gibbons's Motion to Expand the Record (Doc. No. 30 ) is DENIED. Gibbons's Motion to Accept Amended Pleadings via Local Rule 15.1(a) and (b) (Amended) (Doc. No. 38 ) is DENIED. Gibbons's Motion to Accept Ame nded Pleadings (Doc. No. 39 ) is DENIED. Gibbons's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") (Doc. Nos. [1, 1-1]) is DENIED. Gibbons's Motion to Request Appointme nt of Essential Expert and Investigator (Doc. No. 35 ) is DENIED AS MOOT. This action is DISMISSED WITH PREJUDICE. No Certificate of Appealibility is granted in this matter. Gibbons's Motion to Grant Discovery (Doc. No. 52 is DENIED. Gibbons's Motion for Certificate of Appealability (Doc. No. 59 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 3/7/2019. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Andrew James Gibbons,

Civil No. 18-914 (DWF/HB)

Petitioner,
v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Tom Roy,
Respondent.

This matter is before the Court upon Petitioner Andrew James Gibbons’s
(“Petitioner”) objections (Doc. No. 49) to Magistrate Judge Hildy Bowbeer’s January 29,
2019 Report and Recommendation (Doc. No. 48) insofar as it recommends that:
(1) Petitioner’s Motion to Consider Supporting Memorandum to Respondent’s Answer
and to Supplement and Amend, in part, the § 2254 Memorandum be granted;
(2) Petitioner’s Motion to Expand the Record be denied; (3) Petitioner’s Motion to
Accept Amended Pleadings via Local Rule 15.1(a) and (b) (Amended) be denied;
(4) Petitioner’s Motion to Accept Amended Pleadings via Local Rule 15.1(a) and
(b) (Strikethrough) be denied: (5) Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody (“Petition”) be denied; (6) Petitioner’s
Motion to Request Appointment of Essential Expert and Investigator be denied as moot;
(7) this action be dismissed; and (8) a Certificate of Appealability not be issued.
Respondent filed a response to Petitioner’s objections on February 20, 2019. (Doc.
No. 61.)

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, and found that none of Petitioner’s
grounds for habeas relief (which are based on claims of ineffective assistance of counsel)
were articulated in his first petition for post-conviction relief and are, therefore,
procedurally defaulted. In addition, the Magistrate Judge carefully considered and found
that Petitioner cannot rely on a claim of ineffective assistance of counsel to excuse the
procedural default of the grounds for her Petition and that no exceptions to the procedural
default are available. In light of this, the Magistrate Judge recommended that the Petition
be denied.
In addition, out of an abundance of caution, the Magistrate Judge considered
additional motions filed by Petitioner without first receiving required leave to do so. As
such, the Magistrate Judge recommended denying Petitioner’s Second Motion to Expand,
denying Petitioner’s Motion to Amend as futile, and denying Petitioner’s Second Motion
to Request Appointment as moot. Finally, the Magistrate Judge recommended that no
certificate of appealability (“COA”) be granted because it is unlikely that any other court,
including the Eighth Circuit Court of Appeals, would decide Petitioner’s grounds for
federal relief any differently and Petitioner has not identified anything novel, noteworthy,
or worrisome about this case that would warrant appellate review.

2

Petitioner objects to the Report and Recommendation and separately filed an
Application for Certificate of Appealability and a motion for discovery. It appears that
the crux of Petitioner’s objection rests on the argument that he exhausted his claims, has
met a procedural default exception, and that his motion to amend is not futile because he
has met a procedural default exception. More generally, Petitioner argues that he should
be allowed to expand the record.
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 that would warrant a departure
from the Magistrate Judge’s recommendations, which are both factually and legally
correct. In particular, the Magistrate Judge correctly concluded that Petitioner’s habeas
petition should be denied. In addition, a § 2254 petitioner cannot appeal an adverse
ruling on his petition unless he is granted a COA. 28 U.S.C. § 2253(c)(1). A COA may
issue only if the petitioner has made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Here, the Court concludes that Petitioner
has not made such a showing.
Therefore, based upon the de novo review of the record and all of the arguments
and submissions of the parties and the Court being otherwise duly advised in the
premises, the Court hereby enters the following:

3

ORDER
1.

Petitioner Andrew James Gibbons’s objections (Doc. No. [49]) to

Magistrate Judge Hildy Bowbeer’s January 29, 2019 Report and Recommendation are
OVERRULED.
2.

Magistrate Judge Hildy Bowbeer’s January 29, 2019 Report and

Recommendation (Doc. No. [48]) is ADOPTED.
3.

Petitioner Andrew James Gibbons’s Motion to Consider Supporting

Memorandum to Respondent’s Answer and to Supplement and Amend, in part, the
§ 2254 Memorandum (Doc. No. [33]) is GRANTED.
4.

Gibbons’s Motion to Expand the Record (Doc. No. [30]) is DENIED.

5.

Gibbons’s Motion to Accept Amended Pleadings via Local Rule 15.1(a)

and (b) (Amended) (Doc. No. [38]) is DENIED.
6.

Gibbons’s Motion to Accept Amended Pleadings (Doc. No. [39]) is

DENIED.
7.

Gibbons’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

Person in State Custody (“Petition”) (Doc. Nos. [1, 1-1]) is DENIED.
8.

Gibbons’s Motion to Request Appointment of Essential Expert and

Investigator (Doc. No. [35]) is DENIED AS MOOT.
9.

This action is DISMISSED WITH PREJUDICE.

10.

No Certificate of Appealibility is granted in this matter.

11.

Gibbons’s Motion to Grant Discovery (Doc. No. [52] is DENIED.
4

12.

Gibbons’s Motion for Certificate of Appealability (Doc. No. [59]) is

DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 7, 2019

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

5