Mayen v. Fluke et al

Filing 15

ORDER granting 11 Motion to Dismiss; adopting 14 Report and Recommendation; dismissing 1 Petition. A certificate of appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 01/10/2022. MAILING Order to Mr. Mayen. (SAC)

Case 4:21-cv-04145-KES Document 15 Filed 01/10/22 Page 1 of 3 PageID #: 118

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PETER MAYEN,

4:21-CV-04145-KES
Petitioner,

vs.

ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DENYING PETITION FOR
CERTIFICATE OF APPEALABILITY

WARDEN FLUKE, and JASON
RAVENSBORG, ATTORNEY GENERAL
OF THE STATE OF SOUTH DAKOTA,
Respondents.

Petitioner, Peter Mayen, filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254. Docket 1. In his petition, Mayen seeks habeas relief.
Id. The petition 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. After a preliminary review according to Rule 4 of the Rules
Governing Habeas Cases, the court issued an order to show cause directing
both parties to address why Mayen’s petition should not be dismissed for
untimeliness. Docket 7. Mayen responded. Docket 9. On September 9, 2021,
respondents moved to dismiss Mayen’s petition. Docket 11. Id.
On December 21, 2021, Magistrate Judge Duffy filed a report and
recommendation that recommended dismissal with prejudice of all of Mayen’s
habeas claims as untimely. Docket 14 at 9.

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Case 4:21-cv-04145-KES Document 15 Filed 01/10/22 Page 2 of 3 PageID #: 119

The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Mayen did not file objections to Magistrate Judge Duffy’s report and
recommendation. After de novo review of the record, the court adopts the
report and recommendation in full and dismisses Mayen’s petition.
“[A] state prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.” Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). “Before an appeal
may be entertained, a prisoner who was denied habeas relief in the district
court must first seek and obtain a COA from a circuit justice or judge.” Id. at
335–36. 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).

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Case 4:21-cv-04145-KES Document 15 Filed 01/10/22 Page 3 of 3 PageID #: 120

The court finds that Mayen fails to make a substantial showing that his
constitutional rights were denied. Consequently, a certificate of appealability is
denied as to all claims.
Thus, it is ORDERED
1.

Magistrate Judge Duffy’s report and recommendation (Docket 14) is
adopted in full.

2.

Respondents’ motion to dismiss (Docket 11) is granted, and Mayen’s
petition (Docket 1) is dismissed with prejudice.

3.

A certificate of appealability is denied.

Dated January 10, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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