Thorson v. Janssen

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BURKE THORSON,
Petitioner,
v.
VICKI JANSSEN, Commissioner of
Corrections,1
Respondent.
Case No. 25-CV-4825 (NEB/JFD)
REPORT AND RECOMMENDATION
In February 2024, petitioner Burke Thorson pleaded guilty in state court to one
count of making threats of violence. Two months later, he was sentenced to a short term of
jail detention followed by five years of probation. Mr. Thorson did not file a direct appeal,
nor has he ever challenged his conviction or sentence in state court through any other
procedural mechanism.
But Mr. Thorson now believes that his guilty plea was invalid. The plea agreement,
Mr. Thorson argues, was forged by his attorney, who should not have been permitted to
represent him anyway, because the attorney was on disciplinary probation at the time of
the representation. Mr. Thorson now seeks a writ of habeas corpus from this Court
invalidating the conviction and lifting his ongoing term of probation.
1 Mr. Thorson has sued “Vicki Janssen, Commissioner of Corrections,” but she is not the
Commissioner of Corrections for the State of Minnesota. The position of commissioner is
occupied by Paul Schnell. The identity of the respondent named in the caption is immaterial
to the Court’s analysis of the issues in this Report and Recommendation.
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This matter is before the Court on initial review pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts. As a result of that
review, this Court concludes that Mr. Thorson’s habeas petition should be summarily
denied without prejudice and this case dismissed.
As an initial matter, the habeas petition is almost certainly untimely. Under 28
U.S.C. § 2244(d)(1),
A 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from
the latest of—
(A) the date on which the judgment became final
by 	the 	conclusion 	of 	direct 	review 	or 	the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the 	Supreme 	Court 	and 	made 	retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the
claim 	or 	claims 	presented 	could 	have 	been
discovered through the exercise of due diligence.
Mr. Thorson’s conviction has been final for well over a year; he was not impeded from
seeking federal habeas relief previously; and his habeas petition does not rely upon a newly
recognized constitutional right. Accordingly, the habeas petition can be timely only if the
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limitations period is governed by § 2244(d)(1)(D), which provides that a habeas petitioner
has one year in which to seek relief beginning from “the date on which the factual predicate
of the claim or claims presented could have been discovered through the exercise of due
diligence”
Mr. Thorson makes an effort to argue that he could not challenge his conviction
until he “obtained evidence of the forgery and probation status,” Petition at 2 [Dkt. No. 1],
but it is almost unfathomable that Mr. Thorson did not know—or, with even minimal
diligence, could not have known—that the terms of his written plea agreement, as entered
in open court, differed from what he had understood those terms to be. Similarly, the fact
that Mr. Thorson’s attorney was on disciplinary probation was a matter of public record at
the time of the representation; this fact could have been known to Mr. Thorson at the time
of his conviction. There is no obvious reason from the petition why § 2244(d)(1)(D) would
establish the appropriate limitations date for this matter—and if § 2244(d)(1)(D) does not
apply, then the habeas petition is plainly untimely.
Ultimately, though, this does not matter. A person seeking habeas relief from a state-
court judgment must fully exhaust his claims for relief in the state courts, including the
state appellate courts. See 28 U.S.C. § 2254(b). Mr. Thorson has not exhausted his claims
for relief; in fact, he has not even presented his claims for relief to the trial court. Federal
habeas relief is a remedy of last resort, not first resort. See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (“Because the exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts . . . state prisoners must give the state courts one full
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opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.”).
There are exceptions to this exhaustion requirement, and Mr. Thorson attempts to
avail himself of one of those exceptions by arguing that the state machinery for processing
his claim is defective—his former attorney’s son is a trial judge in the judicial district where
the criminal proceedings occurred, and Mr. Thorson argues that therefore his claims will
never be given a fair shake in that venue. See Petition at 2. This explanation does not wash.
For one thing, it would not explain Mr. Thorson’s failure to seek relief on direct appeal.
For another thing, there is no reason to believe that Mr. Thorson’s claims, if today raised
through a postconviction petition, would be reviewed by his former attorney’s son or by
anyone else unable to adjudicate impartially Mr. Thorson’s claims—and, of course, the
denial of any claim for postconviction relief could be reviewed by the Minnesota appellate
courts on any basis, including the grounds that the adjudicator was biased against Mr.
Thorson. Hypothesized judicial bias of the kind asserted by Mr. Thorson does not amount
to “circumstances exist that render such process ineffective to protect the rights of the
applicant,” 28 U.S.C. § 2244(b)(1)(B)(ii), and thus does not excuse a habeas petitioner’s
failure to exhaust state remedies, see, e.g., Crank v. Jenks, 224 F. App’x 838, 839 (10th
Cir. 2007) (noting that “conclusory allegations of general bias” are not a sufficient basis
upon which to excuse exhaustion requirements).
Accordingly, it is recommended that this matter be dismissed without prejudice due
to Mr. Thorson’s failure to exhaust administrative remedies. Only two other matters merit
brief comment. First, Mr. Thorson has filed a motion seeking immediate emergency relief
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from the terms of his probation. See Dkt. No. 2. Because this matter is subject to summary
dismissal on initial review, the motion for emergency relief should be denied. Second,
because this Court does not believe that reasonable jurists could differ regarding the
summary denial of Mr. Thorson’s habeas petition, it is recommended that Mr. Thorson not
be issued a certificate of appealability. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529
U.S. 473, 484 (2000).
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY RECOMMENDED THAT:
1. 	The petition for a writ of habeas corpus of petitioner Burke Thorson (Dkt.
No. 1) be DENIED WITHOUT PREJUDICE.
2. 	Mr. Thorson’s motion for a protective order and stay of probation conditions
(Dkt. No. 2) be DENIED.
3. 	This matter be DISMISSED.
4. 	No certificate of appealability be issued.
Date: January 6, 2026 	s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
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Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c).
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