Udoh v. State of Minnesota

• Court: District Court, D. Minnesota
• Decided: November 8, 2021
• Docket: 0:21-cv-01588
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA EMEM UFOT UDOH,

Civil No. 21-1588 (JRT/JFD) Petitioner,

v. ORDER ADOPTING REPORT AND

RECOMMENDATION STATE OF MINNESOTA,

Respondent.

Emem Ufot Udoh, OID #245042, MCF-Faribault 1101 Linden Lane Faribault, MN 55021, pro se petitioner.

Jonathan P Schmidt, Assistant County Attorney, Hennepin County Government Center, 300 South 6th Street, Suite C-2000, Minneapolis, MN 55487, Edwin William Stockmeyer, III, Minnesota Attorney General’s Office, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101, and Matthew Frank, Minnesota Attorney General's Office, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101, for respondent.

Petitioner Emem Ufot Udoh has filed objections to a Report and Recommendation (“R&R”) issued by United States Magistrate Judge John F. Docherty on August 16, 2021, recommending that the petition for a writ of habeas corpus be dismissed without prejudice. Because Petitioner has once again failed to obtain authorization from the Eighth Circuit, the Court lacks jurisdiction to consider the petition and will thus overrule the objections and adopt the Report and Recommendation. BACKGROUND Petitioner Emem Ufot Udoh was convicted in state court on one count of criminal

sexual conduct and sentenced to twelve years of imprisonment. State v. Udoh, No. A14- 2181, 2016 WL 687328 (Minn. Ct App. Feb. 22, 2016). He filed a petition for a writ of habeas corpus that was denied on the merits in 2017, then a successive petition that was denied because he lacked authorization from the Eighth Circuit. Udoh v. Dooley, No. 16-

cv-4174 (PAM/HB), 2017 WL 2881126 (D. Minn. July 6, 2017); Udoh v. Knutson, No. 19- cv-1311 (MJD/HB), 2019 WL 5150141 (D. Minn. Aug. 29, 2019). Yet again, Udoh has filed a petition for a writ of habeas corpus.

The Magistrate Judge found that the Court once again lacked jurisdiction over Udoh’s petition because Udoh failed to obtain authorization from the Eighth Circuit. Udoh objects to the R&R but has not raised any specific objections to the Magistrate Judge’s proposed findings or recommendations. Instead, Udoh merely resubmits his

original petition, along with a cover page restating previously submitted arguments. DISCUSSION

A district court reviews de novo the portions of the R&R to which a petitioner specifically objects. 28 U.S.C. § 636(b)(1) and D. Minn. Local Rule 72.2(b). However, unspecific objections to an R&R which merely repeat arguments previously considered by a magistrate judge are not entitled to de novo review, and instead are reviewed for clear

error. See, e.g., Wilson v. Fikes, No. 21-367, 2021 WL 2582199, at *1 (D. Minn. June 23, 2021). Applying this standard, the Court finds that the R&R is not clearly erroneous. The Magistrate Judge correctly found that without authorization from the Eighth Circuit, Udoh

was not permitted to file this successive petition, and therefore the Court lacked jurisdiction to consider the petition’s merits. See 28 U.S.C. § 2244(b)(3); (Docket No. 12). Accordingly, the Court will overrule Udoh’s objection, adopt the R&R, and dismiss this action without prejudice. This decision additionally renders moot Udoh’s pending

application to proceed in forma pauperis [Docket No. 2] and motion for the Court to accept the petition for habeas corpus [Docket No. 3]. Finally, this order also resolves Udoh’s motion for injunctive relief requesting the Court to order the Minnesota Court of

Appeals to reopen his appeal in the state matter A19-1129 [Docket No. 13]. In that motion, Udoh requests the same relief awarded by the Sixth Circuit in Dorn v. Lafler – a partial grant of a writ of habeas corpus. 601 F.3d 439, 445 (6th Cir. 2010). As stated in the Report and Recommendation and adopted here, the Court does not have jurisdiction to

grant such relief unless Udoh obtains authorization from the Eighth Circuit. Therefore, the application to proceed in forma pauperis and both motions will be denied. Since this action is dismissed without prejudice, Udoh may petition for a writ of habeas corpus in the future if he receives authorization from the Eighth Circuit. Finally, the Court adopts

the recommendation that no certificate of appealability be issued. ORDER Based on the foregoing, and all the files, records, and proceedings herein, the Court OVERRULES Petitioner’s objection [Docket No. 21] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 12]. IT IS HEREBY ORDERED that: 1. This matter is DISMISSED WITHOUT PREJUDICE. 2. The application to proceed in forma pauperis of petitioner Emem Ufot Udoh [Docket No. 2] is DENIED AS MOOT. 3. Udoh’s Motion to Accept [Docket No. 3] is DENIED AS MOOT. 4. Udon’s Motion for Injunctive Relief to Reopen A19-1129 [Docket No. 13] is DENIED AS MOOT. 5. Nocertificate of appealability is issued. LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: November 8, 2021 han. (rset at Minneapolis, Minnesota. JOHN R. TUNHEIM Chief Judge United States District Court

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