Wacht v. Braun

Filing 17

ORDER by Judge Daniel L. Hovland ADOPTING 15 Report and Recommendations; granting 7 Motion to Dismiss; and denying 1 WRIT OF HABEAS CORPUS (State).(JM) Distributed on 4/6/2016. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Daniel Evan Wacht,

)
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Petitioner,
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ORDER ADOPTING REPORT
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AND RECOMMENDATION
vs.
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Case No. 1:15-cv-92
Colby Braun, Warden, NDSP,
)
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Respondent.
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______________________________________________________________________________
The Petitioner, Daniel Wacht, filed a petition under 28 U.S.C. § 2254 for a writ of habeas
corpus by a person in state custody on July 9, 2015. See Docket No. 1. Wacht set forth five claims
for relief, including his Fourth Amendment rights were violated because of illegal searches and
seizures, his Sixth Amendment right to a fair and impartial jury was violated, evidence was
presented in violation of state and federal criminal procedure rules and in violation of his right to
due process, and his trial attorney was ineffective. On September 9, 2015, the Respondent filed a
motion to dismiss the petition. See Docket No. 7.
Magistrate Judge Charles S. Miller, Jr. reviewed the petition and motion to dismiss and
issued a Report and Recommendation on March 25, 2016. See Docket No. 15. Judge Miller
recommended Wacht’s petition be dismissed, the Respondent’s motion to dismiss be granted, and
a certificate of appealability not be issued. The parties were given fourteen (14) days to file
objections to the Report and Recommendation. An objection to the Report and Recommendation
was filed on April 5, 2016. See Docket No. 16.
The Court has carefully reviewed Judge Miller’s Report and Recommendation, the
objection to the Report and Recommendation, the relevant case law, and the entire record, and

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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. 7) and
DENIES Wacht’s Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus
by a Person in State Custody (Docket No. 1).
2) The Court certifies that an appeal from the denial of this petition may not be
taken in forma pauperis because such an 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 6th day of April, 2016.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court 

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