Bausch v. Sullivan et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOSHUA ALLEN BAUSCH
Petitioner,
vs.
BRENT FLUKE, Warden and THE
ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA
Respondents.
4:22-CV-04026-KES
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DENYING PETITION FOR
CERTIFICATE OF APPEALABILITY
Petitioner, Joshua Allen Bausch, filed a pro se petition and amended
petition for writ of habeas corpus under 28 U.S.C. § 2254. Dockets 1, 10. This
matter was assigned to United States Magistrate Judge Veronica Duffy under
28 U.S.C. § 636(b)(1)(B), and this court’s October 16, 2014, standing order. On
March 16, 2022, respondents moved for judgment on the pleadings. Docket 4.
On June 21, 2022, Magistrate Judge Duffy filed a report and recommendation
that recommended dismissal with prejudice of all of Bausch’s habeas claims
because the state habeas court’s factual findings are supported by the record,
and that court reasonably applied federal law to Bausch’s claims. Docket 13.
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. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
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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); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Bausch did not file objections to Magistrate Judge Duffy’s report and
recommendation. After de novo review of the record, the court adopts the
report and recommendation in full and dismisses Bausch’s petition.
“[A] state prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.” Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). “Before an appeal
may be entertained, a prisoner who was denied habeas relief in the district
court must first seek and obtain a [certificate of appealability] from a circuit
justice or judge.” Id. at 335–36. A certificate may be issued “only if the
applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(2). A “substantial showing” is one that demonstrates
“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).
The court finds that Bausch fails to make a substantial showing that his
constitutional rights were denied, and a certificate of appealability is denied as
to all claims.
Thus, it is ORDERED
1. 	Magistrate Judge Duffy’s report and recommendation (Docket 13)
is adopted in full.
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2. 	Bausch’s claims are dismissed with prejudice.
3. 	A certificate of appealability is denied.
Dated September 14, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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