DuBray v. Pringle

Filing 19

ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS by Chief Judge Ralph R. Erickson; granting 7 Motion to Dismiss; and dismissing 1 WRIT OF HABEAS CORPUS (State). (MS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Nathan G. DuBray,
Plaintiff,
vs.
Chad Pringle,
Defendant.

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ORDER ADOPTING REPORT AND
RECOMMENDATION
Civil No. 3:16-cv-29

Petitioner Nathan G. DuBray filed a petition for habeas relief under 28 U.S.C. §
2254.1 The Court has received a Report and Recommendation from the Honorable Alice
R. Senechal, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending
that:
1)

The Defendant’s, Chad Pringle, motion to dismiss be granted;

2)

DuBray’s petition for habeas relief be dismissed with prejudice;

3)

The Court certify that an appeal from the dismissal of this action may not be
taken in forma pauperis because such an appeal is frivolous and cannot be
taken in good faith; and

4)

A certificate of appealability not be issued with respect to any of the issues
raised by DuBray in this action.

No party has objected to the Report and Recommendation.
The Court has reviewed the Report and Recommendation and agrees with Magistrate
Judge Senechal’s recommendation. Accordingly, the Court hereby adopts the Report and
Recommendation in its entirety.

1

Doc. #1.

Based upon the entire record before the Court, 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 this
court.2 If the petitioner desires further review of his petition, he may request the issuance
of a certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in
accordance with Tiedeman.3
Additionally, the Court finds that any appeal would be frivolous, could not be taken
in good faith, and may not be taken in forma pauperis.4
For the foregoing reasons, DuBray’s application requesting habeas relief is
DENIED.
IT IS SO ORDERED.
Dated this 28th day of September, 2016.
/s/
Ralph R. Erickson
Ralph R. Erickson, District Judge
United States District Court

2

See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997) (holding that a
district court possesses the authority to issue certificates of appealability under 28 U.S.C.
§ 2253(c)).
3
4

Id. at 525-52.

See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.”); see also Coppedge v. United States,
360 U.S. 438, 444-45 (1962).