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Steen v. Schmalenberger

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHWESTERN DIVISION


October 8, 2010

RANDAL R. STEEN, PETITIONER,
v.
ROBYN T. SCHMALENBERGER, RESPONDENT.

The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER ADOPTING REPORT AND RECOMMENDATION

On July 30, 2009, the Respondent*fn1 filed a "Motion to Dismiss Section 2254 Application." See Docket No. 20. The petitioner, Randal R. Steen, filed a response in opposition to the motion on October 22, 2009. See Docket No. 31. The Respondent filed a reply brief on October 29, 2009. See Docket No. 34. On August 20, 2010, Magistrate Judge Charles S. Miller, Jr. issued a Report and Recommendation wherein he recommended that the Court grant the Respondent's motion to dismiss, deny Steen's petition, certify that an appeal from the denial of this action may not be taken in forma pauperis, and that a certificate of appealability not be issued. See Docket No. 40. Steen filed an objection on October 5, 2010. See Docket No. 45.

In Steen's objection, he maintains he is innocent of the crimes for which he was convicted. He also contends he received ineffective assistance of counsel at trial, on appeal, and in his post-conviction proceedings. Additionally, he argues his Fourth Amendment rights were violated prior to his arrest.

The Court has carefully reviewed the Report and Recommendation, relevant case law, Steen's objection, and the entire record, and finds the Report and Recommendation to be persuasive.

Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 40) in its entirety, GRANTS the Respondent's motion to dismiss (Docket No. 20), and DENIES Steen's petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Docket No. 1). The Court certifies that an appeal from the denial of this action may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith, and ORDERS that a certificate of appealability not be issued.

IT IS SO ORDERED.


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