Romero v. Braun

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS; granting 8 Motion to Dismiss; adopting 15 Report and Recommendations; denying 2 WRIT OF HABEAS CORPUS (State) by Judge Daniel L. Hovland.(MM) Distributed on 11/5/2015. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Miguel Humberto Medina Romero,
Petitioner,
vs.
Colby Braun, Warden, NDSP
Respondent.

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ORDER ADOPTING
REPORT AND RECOMMENDATION

Case No. 1:15-cv-47

The Petitioner, Miguel Humberto Medina Romero, filed a petition under 28 U.S.C. § 2254
for a writ of habeas corpus by a person in state custody on April 30, 2015. See Docket No. 2.
Romero sets forth two claims of ineffective assistance of counsel in relation to defense counsel’s
handling of the trial. See Docket No. 2. On June 29, 2015, the Respondent filed a motion to dismiss
the petition. See Docket No. 8.
Magistrate Judge Charles S. Miller, Jr. reviewed the petition and the motion to dismiss and
issued a Report and Recommendation on September 8, 2015. See Docket No. 15. Judge Miller
recommended Romero’s petition be dismissed. Specifically, Judge Miller found Romero’s first
claim of ineffective assistance relating to the alleged failure to call witnesses failed because it was
unsupported by any signed statements or affidavits, and no prejudice was shown. Judge Miller
found the second claim relating to defense counsel’s alleged failure to explain voir dire and the jury
selection process failed because it was unsupported by any evidence of deficient performance in the
jury selection process, and the claimed prejudice was based entirely on speculation.
The parties were given fourteen (14) days to file objections to the Report and
Recommendation. At Romero’s request, the time to file objections was extended twenty (20) days.
No objections were filed.

The Court has carefully reviewed the entire record and the relevant law and finds the Report
and Recommendation to be persuasive.

Accordingly, the Court ADOPTS the Report and

Recommendation (Docket No. 15) in its entirety, and ORDERS the following:
1)

The Court GRANTS the Respondent’s Motion to Dismiss (Docket
No. 8) and DENIES WITH PREJUDICE Romero’s Petition under 28
U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State
Custody (Docket No. 2).

2)

The Court certifies that an appeal from the denial of this petition may
not be taken in forma pauperis because such a appeal would be
frivolous and cannot be taken in good faith.

3)

The Court finds dismissal of the petition is not debatable, reasonably
subject to a different outcome on appeal, or otherwise deserving of
further proceedings. Therefore, a certificate of appealability will not
be issued by this Court. Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983). If the Petitioner desires further review of his motion he may
request issuance of a certificate of appealability by a circuit judge of
the Eighth Circuit Court of Appeals.

IT IS SO ORDERED.
Dated this 5th day of November, 2015.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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