Opinion
No. 07-CV-2018-LRR.
December 18, 2007
ORDER
I. INTRODUCTION
The matters before the court are Petitioner Walter Junior Hoskins, III's Motion for Evidentiary Hearing and to Expand the Record ("Motion") (docket no. 17) and United States Magistrate Judge Jon Stuart Scoles's Report and Recommendation (docket no. 23).
On August 6, 2007, Petitioner filed his Motion. On October 30, 2007, Judge Scoles filed the Report and Recommendation. Such Report and Recommendation addressed Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition") (docket no. 2), as well as the Motion and Petitioner's request for a certificate of appealability. On November 13, 2007, Petitioner filed seven Objections (docket no. 24) to the Report and Recommendation.
II. STANDARD OF REVIEW
The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may 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); see also Fed.R.Civ.P. 72(b) (requiring de novo review of a magistrate judge's recommendation on dispositive motions and prisoner petitions). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., United States v. Lothridge, 324 F.3d 599, 601 (8th Cir. 2003); Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995); Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). However, the plain language of the statute governing review provides only for de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Therefore, portions of the proposed findings or recommendations to which no objections were filed are reviewed only for "plain error." See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (reviewing factual findings for "plain error" where no objections to the magistrate judge's report were filed).
III. ANALYSIS
A review of the record leads the court to conclude that Petitioner's Objections are without merit. It is appropriate to deny the Motion due to the limits set forth in 28 U.S.C. § 2254(e)(2) for conducting an evidentiary hearing. See Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir. 2002) (discussing constraints on district court's discretion to hold an evidentiary hearing); Hall v. Luebbers, 296 F.3d 685, 700 (8th Cir. 2002) (discussing standard for conducting an evidentiary hearing under 28 U.S.C. § 2254(e)(2)); Kinder v. Bowersox, 272 F.3d 532, 542 (8th Cir. 2001) (finding it was proper for district court not to hold an evidentiary hearing because the petitioner did not meet the requirements of 28 U.S.C. § 2254(e)(2)); Parker v. Kemna, 260 F.3d 852, 854 (8th Cir. 2001) (same); Hatcher v. Hopkins, 256 F.3d 761, 764 (8th Cir. 2001) (same); cf. Johnston v. Luebbers, 288 F.3d 1048, 1058-60 (8th Cir. 2002) (assuming that 28 U.S.C. § 2254(e)(2) did not bar the district court from granting an evidentiary hearing and denying the petitioner an evidentiary hearing because such a hearing would not assist in the resolution of his claim). Moreover, it is appropriate to deny the Petition because the Iowa courts neither reached a decision contrary to that reached by the United States Supreme Court on a question of law nor correctly identified the applicable principles of federal law but then unreasonably applied that law to the facts of Petitioner's claims. 28 U.S.C. § 2254(d)(1); see also Newman v. Hopkins, 247 F.3d 848, 850-52 (8th Cir. 2001) (discussing Williams v. Taylor, 529 U.S. 362 (2000)). And, the Iowa court's decision was not based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(2). Specifically, the Iowa courts' decisions were not contrary to and did not involve an unreasonable application of the case law regarding the Fourth Amendment or the Sixth Amendment. With respect to the alleged unconstitutional search, Stone v. Powell, 482 U.S. 465 (1976), prevents the court from granting habeas relief because the State provided an opportunity for full and fair litigation of the Fourth Amendment claim, and the Iowa courts correctly applied federal law when they addressed the merits of the Fourth Amendment claim. Concerning ineffective assistance of counsel, the Iowa courts correctly applied Strickland v. Washington, 466 U.S. 668 (1984), when they addressed the confidential informant issue and the judgment of acquittal issue. The claims raised in the Petition do not warrant relief under 28 U.S.C. § 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000). Finally, the court concludes that there is no reason to grant a certificate of appealability. 28 U.S.C. § 2253.
IV. CONCLUSION
In light of the foregoing and based upon its review of Judge Scoles's Report and Recommendation, the court concludes that there is no ground to reject or modify his findings and conclusions. Therefore, the court shall deny the Motion and adopt Judge Scoles's Report and Recommendation.
IT IS HEREBY ORDERED:
IT IS SO ORDERED.
(1) Petitioner's Objections (docket no. 24) are OVERRULED.
(2) The Motion (docket no. 17) is DENIED.
(3) The Petition (docket no. 2) is DENIED.
(4) Judge Scoles's Report and Recommendation (docket no. 23) is ADOPTED.
(5) For the reasons stated in the Report and Recommendation, a certificate of appealability is also DENIED. Having thoroughly reviewed the record in this case, the court finds that Petitioner failed to make the requisite "substantial showing" with respect to the claims he raises in his Petition. See 28 U.S.C. § 2253(c)(2); Fed.R.App.P. 22(b). Because he does not present questions of substance for appellate review, there is no reason to grant a certificate of appealability. If he desires further review of his Petition, Petitioner may request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals, in accordance with Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
PLEASE READ CAREFULLY
Mr./MsEnclosed is a copy of the court's order and judgment disposing of the above-captioned matter.
In the event you wish to pursue this matter further by appealing the district court's decision to the Eighth Circuit Court of Appeals, you should be aware that Congress has made substantial modifications to 28 U.S.C. § 1915 dealing with the payment of filing fees, which are applicable to that appeal, in the PRISONER LITIGATION REFORM ACT, effective April 26, 1996.
First, in In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997), the Eighth Circuit has held that you will become liable for payment of the $455.00 filing fee "at the moment" the notice of appeal is filed in the district court. This fee is in addition to the fee which previously has been assessed in the district court and is assessed regardless of the outcome of the appeal.
Therefore, you have two (2) options with respect to satisfying the appellate filing fee. Specifically, you may either pay the entire fee of $455.00 at the time you file the notice of appeal, or you may seek leave of the district court to file the appeal in forma pauperis. If you choose to proceed in forma pauperis, you should be aware that:
1. By filing a notice of appeal in the district court, you consent to the deduction of the initial partial appellate filing fee and the remaining installments from your prison account by prison officials. The attached authorization form permitting the deductions from your prison account must be submitted with your application to proceed on appeal in forma pauperis.
2. You are required to submit to the clerk of the district court a motion to proceed on appeal in forma pauperis and a certified copy of your prison account for the last six (6) months within thirty (30) days of the filing of the notice of appeal.
3. If you fail to file the prison account information within the time provided, the court will assess an initial partial appellate fee of $35.00 or such other amount as is reasonable, based on whatever information the court has about your finances.
Once the district court clerk's office receives all of the above materials and your notice of appeal, the matter will be submitted to the district court for a decision as to whether you should be allowed to appeal in forma pauperis. If you are granted leave to appeal in forma pauperis, the court will send you an order assessing your initial partial payment. You will be liable for payment of the balance of the $455.00 appeal fee in monthly installments, regardless of the outcome of your appeal.
If you choose to file an appeal, please comply with these directions regarding your filing fee obligations. Your appeal cannot be processed and sent to the court of appeals unless you either pay the full filing fee or obtain leave to appeal in forma pauperis . In addition, please note that this letter deals only with the filing fee requirements. You must also comply with the applicable rules relating to the time and manner for perfecting your appeal.
Enclosure
AUTHORIZATION TO DEBIT PRISON-INMATE ACCOUNT TO PAY FEDERAL COURT FILING FEES
I, _____________________________, Inmate #_________________________, request and authorize the agency holding me in custody to disburse funds in an amount not to exceed $455.00 from my inmate account to the Clerk of the United States District Court, Northern District of Iowa, for the purpose of paying the initial partial filing fee and subsequent installment payments for an appeal in my case number C______________________ (APPEAL), entitled:_________________________ vs. _________________________________________
I understand that the total filing fee for this appeal is $455.00. I also understand that, after payment of my initial partial filing fee, the balance of the fee will be deducted from my account in monthly installments until the entire $455.00 fee is paid. The monthly installments will be equal to twenty percent (20%) of the funds deposited to my account during the preceding calendar month. I agree that I am responsible for the entire fee, regardless of the outcome of my case.
I agree that this authorization shall apply to any other agency into whose custody I may be transferred.
DATED this __________ day of __________________________, 20 _______. (Signature of Plaintiff)
_____________________________________CERTIFICATE OF INMATE ACCOUNT AND ASSETS
I certify that the applicant, _____________________________________, has the sum of $_____________________ on account to his/her credit at the ________________________________ institution where he/she is confined. I further certify that the applicant likewise has the following securities to his/her credit according to the records of said institution:_________________________________________________________________ _________________________________________________________________
I further certify that, during the last six (6) months, the applicant's average inmate account balance was $______________________, and the past six (6) month average monthly deposit to the inmate account was $_____________________.
Based on the above inmate account balance: ( Check the appropriate response)
__________ The applicant has sufficient funds in the prisoner's account to pay the $455.00 filing fee; OR __________ The applicant has insufficient funds to pay the $455.00 filing fee in full at this time. I calculate that twenty percent (20%) of the greater of — (a) the average monthly deposits to the prisoner's account; or (b) the average monthly balance in the prisoner's account for the six (6) month period immediately preceding the filing of the action or notice of appeal. is $________________________, and available as an initial partial filing fee. After payment of the initial partial filing fee, this office will forward twenty percent (20%) of the preceding month's income credited to the prisoner's account as monthly payments to the Clerk of Court each time the amount in the account exceeds $10.00, until the $455.00 filing fee is paid in full. SIGNED this ____________ day of __________________________, 20 _______. ________________________________________ Authorized Officer of Institution APPLICATION TO APPEAL IN FORMA PAUPERIS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA _____________________ DIVISION ______________________________, Case No. C__________________ Plaintiff, vs. _____________________________, Defendant. I, __________________________________________, declare that I am the Plaintiff in the above-entitled proceeding; that in support of my request to proceed without being required to prepay the full filing fee, I state that because of my poverty, I am unable to prepay the full $455.00 filing fee for this appeal; and that I believe I am entitled to relief.In further support of this application, I answer the following questions:
1. Where are you imprisoned? ____________________________________________________
2. When did you begin your imprisonment there? ____________________________________________________
3. When do you expect to be released? ____________________________________________________
4. Are you presently receiving an allowance or wage from the prison or jail? ________________________________
If the answer is YES, state the amount of your allowance or wages per month.
______________________.
5. Within the past twelve (12) months, have you received any money from a business, profession or other type of self-employment, or in the form of rent payments, interest, dividends, retirement or annuity, gifts inheritances, court award or settlement, or other sources? _______. If YES, give the amount received and identify the sources. ____________________________________________________ ____________________________________________________
6. What is the current balance in your prison account? ____________________
7. Do you own cash, or do you have money in a checking or savings account, other than a prison account? ___________ If YES, state the current balance: ________________
8. Do you own any real estate, stocks, bonds, notes, vehicles, or other valuable property (you need not mention ordinary household and cell furnishings such as radios, TV sets, stereo, books, etc., and personal clothing)? __________ If YES, describe the property and state its approximate value: ____________________________________________________ ____________________________________________________
I hereby authorize officials of the institution where I am incarcerated to release my financial records to the court. My identification number at the institution is _____________________. I declare under penalty of perjury that I have read the foregoing and it is true, complete, and correct.
Signed this __________ day of _____________________________, 20 ______. (Signature of Plaintiff)
_______________________________________________