Ramsey v. Birtsch et al

Filing 17

ORDER ADOPTING 13 REPORT AND RECOMMENDATION; granting 8 Respondents' Motion to Dismiss; and dismissing 1 WRIT OF HABEAS CORPUS (State) by Chief Judge Ralph R. Erickson.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Terry D. Ramsey,
Petitioner,

Case No. 3:14-cv-73

-vsORDER ADOPTING REPORT AND
RECOMMENDATION

Leeann Bertsch, Director, NDDOCR,
Wayne Stenehjem, NDAG, and State of
North Dakota,
Respondents.

Pursuant to 28 U.S.C. § 636, the court has received a Report and Recommendation
from the Honorable Alice R. Senechal, United States Magistrate Judge, recommending that
respondents’ motion to dismiss be granted and petitioner’s petition for habeas relief be
dismissed with prejudice.1 Petitioner Terry D. Ramsey (“Ramsey”) has filed an objection
to the Report and Recommendation.2 Ramsey reiterates his innocence, but presents no
additional evidence.
The court has conducted a de novo review of the record. Contrary to Ramsey’s
assertions, the evidence in the record is not such that a jury would “certainly find [him]
innocent beyond a reasonable doubt.” The victim’s recantation letter postmarked May 4,
2011 is, as noted by the state courts and the magistrate judge, tenuous. Moreover, one
might reasonably question the reliability of the victim’s affidavits, particularly the last
affidavit, asserting no abuse occurred, which is in a form more consistent with assistance

1

Doc. #13.

2

Doc. #16.

1

from Ramsey’s father.
On this record, Ramsey’s claims are time-barred and he has failed to make a showing
for equitable tolling. Although a petitioner may proceed with claims that would otherwise
be time-barred if he demonstrates actual innocence, Ramsey has failed to provide sufficient
credible evidence of actual innocence. Accordingly, the court hereby adopts the Report and
Recommendation in its entirety. For the reasons stated therein, the respondents’ motion
to dismiss is GRANTED and Ramsey’s petition for habeas relief is DISMISSED with
prejudice.
The court finds that any appeal would be frivolous, could not be taken in good faith,
and may not be taken in forma pauperis. Based upon the entire record, dismissal of the
motion 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 the court.3 If Ramsey desires further review, he may request the issuance of a certificate
of appealability by a circuit judge of the Eighth Circuit Court of Appeals.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 30th day of March, 2015.

/s/ Ralph R. Erickson
Ralph R. Erickson, Chief Judge
United States District Court

3

Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).

2