Banzi v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEFED BANZI,
Petitioner,
vs.
BRENT FLUKE; RICHARD A.
SOMMERS, Judge; CHRISTY SERR,
Attorney-D.A.; and ATTORNEY
GENERAL FOR THE STATE OF SOUTH
DAKOTA,
Respondents.
4:21-CV-04207-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING PETITION
Petitioner, Defed Banzi, filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254. The matter was referred to Magistrate Judge Veronica
L. Duffy for a report and recommendation and she recommends dismissing the
petition because Banzi failed to file the petition within the one-year statute of
limitations period under the Antiterrorism and Effective Death Penalty Act
(AEDPA) and because the claims are procedurally defaulted. Docket 13. Banzi
did not object to the report and recommendation and the time for objections
has passed. The court adopts Magistrate Judge Duffy’s report and
recommendation in full.
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. Under 28 U.S.C. § 636(b)(1), the court reviews de novo any
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objections to the magistrate judge’s recommendations with respect to
dispositive matters that are timely made and specific. See Fed. R. Civ. P. 72(b).
(“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to”). In conducting its de novo
review, this court may then “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 United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
This court has reviewed Magistrate Judge Duffy’s report and
recommendation de novo. This court agrees in full with Magistrate Judge
Duffy’s reasoning and adopts the report and recommendation in full.
Furthermore, under Fed. R. App. P. 22(b), the court finds that Banzi
has not made a substantial showing of the denial of a constitutional right. 28
U.S.C. ' 2253(c)(2). Thus, a certificate of appealability is denied.
Thus, it is ORDERED that
1. The report and recommendation (Docket 13) is adopted in full. Banzi’s
pro se petition for habeas corpus is denied with prejudice
2. Respondents’ motion to dismiss (Docket 11) is granted.
3. Banzi is denied a certificate of appealability.
Dated March 4, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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