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TSCHEU v. SMITH, 13-2099(JNE/FLN). (2016)

Court: District Court, D. Minnesota Number: infdco20160112b54 Visitors: 8
Filed: Jan. 08, 2016
Latest Update: Jan. 08, 2016
Summary: ORDER JOAN N. ERICKSEN , District Judge . This matter is before the Court on a Report and Recommendation issued by the Honorable Franklin L. Noel, United States Magistrate Judge, on November 19, 2015. On December 2, Petitioner David Michael Tscheu filed a motion seeking an extension of time to file an objection to the Report and Recommendation. The next day, he filed his written objection. The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b). Based on that revie
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ORDER

This matter is before the Court on a Report and Recommendation issued by the Honorable Franklin L. Noel, United States Magistrate Judge, on November 19, 2015. On December 2, Petitioner David Michael Tscheu filed a motion seeking an extension of time to file an objection to the Report and Recommendation. The next day, he filed his written objection. The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b). Based on that review, the Court adopts the Report and Recommendation. The Court denies the motion for an extension of time because Tscheu has already timely filed a written objection and Tscheu has had adequate opportunity to brief the issues raised in this matter.

Tscheu has also filed a motion for a certificate of appealability. A court cannot grant a certificate of appealability unless the applicant has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that 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). Where a district court rejects claims on procedural grounds, a certificate of appealability "should issue when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. Because Tscheu has not demonstrated that reasonable jurists would find the rejection of his claims debatable or wrong, the Court declines to issue a certificate of appealability.

Therefore, IT IS ORDERED THAT:

1. Petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254 [Docket No. 1] is DENIED; 2. The Report and Recommendation [Docket No. 24] is ADOPTED; 3. Petitioner's motion for an extension of time to file an objection [Docket No. 25] is DENIED; 4. Petitioner's motion for a certificate of appealability [Docket No. 29] is DENIED; and 5. This action is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Source:  Leagle

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