Dowty v. United States of America
ORDER granting 7 Motion for Leave to Proceed in forma pauperis; adopting 12 Report and Recommendation; overruling 13 Objection to Report and Recommendation. A certificate of appealability is not issued. Signed by U.S. District Judge Karen E. Schreier on 4/27/17. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
EARL D. DOWTY,
UNITED STATES OF AMERICA,
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
Petitioner, Earl D. Dowty, filed a petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241. Docket 1. The matter was assigned to United States
Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B) and this
court’s October 16, 2014 standing order. Magistrate Judge Duffy recommends
that the petition be dismissed. Docket 12.
Magistrate Judge Duffy found that the court lacked jurisdiction under 28
U.S.C. § 2241 because Dowty is not incarcerated in the District of South
Dakota. Id. at 2. Magistrate Judge Duffy also found that Dowty’s pleading
should be construed as a petition under 28 U.S.C. § 2255 because Dowty
challenges the validity of his conviction. Id. at 3. Because Dowty had already
filed a petition under § 2255, Magistrate Judge Duffy found that this petition
was successive. Id. Dowty did not show that he had been given permission to
file a second or successive petition. Therefore, Magistrate Judge Duffy
recommends dismissal of Dowty’s petition.
Dowty objects to this recommendation. Docket 13. In his objection, he
reiterates that the court did not have jurisdiction over him when he was tried
and as a consequence, his conviction is illegal. Id. He does not respond to
Magistrate Judge Duffy’s analysis. Therefore, his objections are overruled.
“A district court may deny an evidentiary hearing where (1) accepting the
petitioner's allegations as true, the petitioner is not entitled to relief, or (2) ‘the
allegations cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’ ”
Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting
United States v. Sellner, 773 F.3d 927, 929–30 (8th Cir. 2014)). Here, an
evidentiary hearing is not required because the record shows that Dowty is not
incarcerated in the District of South Dakota and that he has already filed a
petition under 28 U.S.C. § 2255.
Before denial of a § 2255 motion may be appealed, a petitioner must first
obtain a certificate of appealability from the district court. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). A certificate may be issued “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(2). A “substantial showing” is one that demonstrates “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
finds that Dowty has not made a substantial showing that the district court’s
assessments of his claims are debatable or wrong. Consequently, a certificate
of appealability is not issued.
Thus, it is ORDERED
1. Dowty’s motion for leave to proceed in forma pauperis (Docket 7) is
2. Dowty’s objections to the report and recommendation (Docket 13) are
3. The report and recommendation (Docket 12) is adopted in full.
Dowty’s petition for Writ of Habeas Corpus under 28 U.S.C. § 2241
(Docket 1) is dismissed.
4. A certificate of appealability is not issued.
Dated April 27, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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