Perkins v. Stenseth
- John Docherty
- 0:24-cv-01909
- U.S. District Court · District of Minnesota
- 3
In Perkins v. Stenseth, Judge Docherty recommended dismissing Perkins’s petition without prejudice for failure to prosecute and not granting permission to appeal.
Alvin Perkins, whose § 2254 action the magistrate judge recommended dismissing without prejudice and whose certificate of appealability the report recommended withholding.
What happened
Perkins v. Stenseth concerns Alvin Perkins’s petition under 28 U.S.C. § 2254. The magistrate judge had ordered him to explain why the petition should not be dismissed because of possible deadline and state-court-remedy problems. He had until July 29, 2024, to respond.
Perkins did not file the required explanation. The report therefore recommends dismissing the case without prejudice for failure to prosecute, meaning failure to move the case forward or follow a court order. It also recommends not granting a certificate of appealability, which is required to appeal an adverse ruling on this type of petition.
Judge John F. Docherty issued the report and recommendation, not a final order. It recommends dismissal under Federal Rule of Civil Procedure 41(b) and not granting a certificate of appealability. The report says objections may be filed within 14 days after service and that it cannot be appealed directly to the Eighth Circuit at this stage.
The detailed version
- Perkins v. Stenseth · No. 0:24-cv-01909
- John F. Docherty
- Aug. 6, 2024
Background
Alvin Perkins filed a petition under 28 U.S.C. § 2254. On July 1, 2024, the court ordered him to show why the case should not be dismissed because of possible problems with the applicable filing deadline and with exhaustion of state-court remedies. The court gave Perkins until July 29, 2024, to submit the required filing.
Failure to Respond
Perkins did not submit the ordered filing. The magistrate judge therefore recommends dismissal under Federal Rule of Civil Procedure 41(b) for failure to prosecute. Here, failure to prosecute means failing to move the case forward or comply with a court order. The recommended dismissal is without prejudice, so it does not bar a later filing on the same matter.
Certificate of Appealability
A certificate of appealability is a court-authorized permission required for a petitioner to appeal an adverse ruling on a petition under § 2254. The report explains that when a petition is rejected for a procedural reason without deciding the underlying constitutional claim, a certificate may issue only if reasonable judges could debate both whether the petition states a valid constitutional claim and whether the procedural ruling was correct. The report concludes that Perkins failed to address the threshold problems identified by the court and recommends that he not be granted a certificate of appealability.
Recommendation and Procedural Status
The report recommends that the action be DISMISSED WITHOUT PREJUDICE under Rule 41(b) for failure to prosecute and that Alvin Perkins not be granted a certificate of appealability. Because this is a report and recommendation rather than a final district-court order or judgment, it is not directly appealable to the Eighth Circuit. The notice states that specific written objections may be filed within 14 days after service, with responses to objections due within the time stated in the notice.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.