McGinnis v. Slayer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Neil Adams McGinnis, 	)
) 	REPORT AND RECOMMENDATION
Petitioner, 	)
)
vs. 	)
)
Warden Mr. James Slayer, 1 et al., 	)
) 	Case No. 1:23-cv-018
Respondents. 	)
The Court has referred a petition for habeas corpus relief filed by Petitioner Neil Adams
McGinnis (“McGinnis”) to the magistrate judge for initial review. 	For the reasons that follow, I
recommend that McGinnis’s habeas petition be dismissed without prejudice pursuant to Rule 4 of
the Rules of the Rules Governing § 2254 Cases.
I. 	BACKGROUND
McGinnis is an inmate at the North Dakota State Penitentiary (“NDSP”). He initiated the
above-captioned action pro se and in forma pauperis on January 23, 2023, with the submission of
a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. Nos. 1, 2, 4). Challenging
the state district court’s revocation of his probation in two state cases, Case Nos. 08-2016-CR-01827
and 08-2017-CR-0072, and taking issue with the conditions of his present confinement, he asserted
the following grounds for relief:
GROUND ONE: 14th, 5th, 8th, 13th Amendment violation(s) or being raped within
my neurological system (veraciously, fairly writing)
Their lies that “there is no digital audiovisual tools of the trade to monitor me in my
house” “ we have no ESI here” is a lie that is extended to the state courts in not
intending to respect federally protected rights that even under common sense.
1The Court can take judicial notice that the correct spelling of the Warden's last name is “Sayler.”
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Ineffective assistance of counsel happened, prosecutorial misconduct of a selective,
vindictive, malicious prosecution happened. The abuse of discretion by Judge Hill
happened. The Clerk of Courts misfeasance happened just as a write about, under
a liberal construing.
* * *
GROUND TWO: 28 C.F.R. Part 115 Prison Rape Elimination Act. The dispute of
NDSt 	54-44.08-09. 	2815.87 	Data 	Collection; 	43 	CFR. 	73.2250 	Subliminal
Perception
You tell me U.S. District Court. How does a highly sophisticated tool trade that
gamers, harvest data not exist when I politely discretely, respectfully, ask why sexual
content, sexual contest is heard by every prisoner, every NDSP employee as a 3rd
and 4th party chronological order narrative, Capt [illegible], Nurse Ashley, Dr.
[illegible] rape babies, rape women, rape men, violently tormenting anyone filing a
report of report of sexual assault, sexual harassment. This would be more than going
to far are administrated retaliatory vindictiveness. Whey then does NDSP employee
lie about no ESI or no telecommunicated tools of trade unless they violate protected
federally protected rights, policies, laws, rules?
* * *
GROUND THREE: Chad Issac’s life, Kelly ______ (a friends, friend who took his
life) due to the lies of the capabilities of the ‘tools of the trade.’”
“We have no digital audiovisual technologies to observe you, monitor you in your
house” is a voice recognized data recording of every NDSP employee and local
public defenders I raised in my disputes filed to local state courts. Lies don’t resolve
disputes, grievances, questions at when veraciously and fairly presented by
Petitioner/ Plaintiff. This national security interests are protected by liars & cheats.
Respectfully as I may when does this lie stop? 	A custodial interrogation
masqueraded under a shift by shift different employee [illegible] of conspiracy
theorist. Misuse this entrusted authority administratively empowered to them by an
employer.
* * *
GROUND FOUR: 8 filed motions to compel arbitration and/or mediation and the
“checklist” of Clerk of Court
#1: Requesting they decide which one was proper for my disputes that includes being
liberally construed, as I have with all motions, legal writings - EVIDENCE is ESI
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they say doesn’t exist verses my paper trail showing clerk of courts false information
after they instructed me, who to file to, how to file with this templated (2) If I am a
mentally disabled residence of Bismarck which even one reads in case laws and
documents for NDDOCR & ND St. Hops. why lie about obvious dispute of not
having eSI? 	Why lie about not having digital audiovisual tools thus creating a
dispute? 	respectfully written Their lies have now permitted Warden Slayer and
NDDOCR Colby Braun (I believe local judiciary) to falsely write me up while being
“I” factor then falsely classify me this is to keep me (“hostage”) when they “absolute
control” (jurisdiction) to control all my litigation and disputes.
(Doc. No. 2) (errors in original). In his prayer for relief he requested to be released from custody.
He also asserted that Warden Sayler was “falsely classifying” him, extorting money from him, and
otherwise intimidating him. 	(Id.).
McGinnis attached the following to his habeas petition: a copy of an incident report from the
NDSP that charged him with misuse of medication and on which he had handwritten “charges” of
his own against Warden Sayler and others; and twenty-seven pages of letters and questions for the
Court’s review and consideration. (Doc. Nos. 2-1 through 2-5).
This matter was directly assigned to the magistrate judge pending McGinnis’s consent. On
January 27, 2022, this matter was reassigned to Judge Hovland when McGinnis filed notice that he
did not consent to magistrate judge jurisdiction. (Doc. No. 5). 	Attached to the notice was a five-
page handwritten statement in which McGinnis discussed, among other things, 18 U.S.C § 3006A
and its requirement that districts formulate and implement a “CJA Plan,” a disciplinary action filed
in 2012 against a former assistant state’s attorney for withholding exculpatory evidence, surveillance
technologies that he asserted have been and are being abused by state employees, custodial
interrogations, Brady v. Maryland, and the First Amendment. 	(Doc. No. 7).
On February 2, 2023, the undersigned issued an order directing McGinnis to either file an
amended habeas petition or to show cause why his original petition should not be dismissed pursuant
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to Rule 4 of the Rules Governing § 2254 petitions. (Doc. No. 8). In so doing, the undersigned
noted: (1) a habeas petition was not vehicle through which McGinnis can litigate his claims
regarding alleged extortion by the NDSP’s Warden or the conditions of his confinement; (2)
McGinnis had improperly named the North Dakota Department of Corrections and Rehabilitation
(“NDDOCR”), Colby Braun, DW Frost, DW Fode, and the NDSP’s Chief of Security as
respondents; and (3) McGinnis’s petition did not satisfy the requirements of Rule 2(c) of the Rules
Governing Section 2254 Cases as it failed to state specific, particularized facts for each ground.
(Id.).
On February 27, 2023, McGinnis filed a 218-page response to the order to show cause.
(Doc. No. 9). 	The response contained: several handwritten narratives; copies of handwritten
motions addressed to the state district court, the North Dakota Supreme Court, and the United States
Supreme Court; orders and/or opinions issued by the state district court, the North Dakota Supreme
Court, and the North Dakota Parole Board on which McGinnis had written comments;
documentation from the NDSP regarding McGinnis’s security classification and disciplinary
proceedings on which McGinnis had written comments; copies of grievances filed by McGinnis with
NDSP staff; copies of requests submitted by McGinnis to NDSP staff; and copies of McGinnis’s
correspondence with clerks’ offices, the North Dakota Parole Board, and attorneys who had
represented him at different stages of his state criminal proceedings. Not all of these documents
were in sequence. Some were illegible.
On February 28, 2023, McGinnis filed a 16-page supplemental response (portions of which
were illegible) to the order to show cause. (Doc. No. 10). In addition to requesting court-appointed
counsel, he asserted: the prosecution failed to disclose Brady materials, i.e., electronically stored
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information (“ESI”) in their possession; his probation officer had committed perjury; the state court
abused its discretion when revoking his probation; and NDSP staff has denied him access to the
documents he had filed with this Court in an earlier action.2
On March 9, 2023, McGinnis filed a 13-page “supplemental affidavit” (portions of which
were illegible) in which he requested: court-appointed counsel; leave to amend his petition to
include as respondents the NDSP’s deputy wardens in light of Warden Sayler’s recent resignation;
the “court to subpoena conditions of confinement and plaintiff’s mental and physical well being and
then make an independent, honest, genuine;” his release; an evidentiary hearing; and arbitration
hearings. 	(Doc. No. 11 at pp. 1, 7, 9, and 11 through13). He also asserted:
• 	“Plaintiff is being raped in my neurological system of everything Plaintiff reacts to.”
(Id. at p. 2) (errors in original).
• 	“Plaintiff is observed in his cell (“house”). 	Plaintiff is being judged, analyzed,
audited, assessed within his subconscious (neurological system) . . . .” (Id.) (errors
in original).
• 	“On July 2, 2021, Plaintiff is no transcripts. Probation officer committed perjury.
Judge Hill exercised an abuse of discretion. 	Prosecutors withheld exculpatory
evidence. Defense attorney rendered ineffective assistance of counsel.” (Id. at p. 3)
(errors in original).
• 	“Plaintiff believes his immediate speedy release is being interfered with, obstructed
by local state judiciary authorities due to the biometric data, information systems
dispute issue controversy which exculpatory evidence is being withheld.” (Id. at pp.
5-6) (errors in original).
• 	“#1 To refuse plaintiff [illegible] honest and fair decision making of falsely writing
Plaintiff (documents supported by ESI). False classifications (documentation and ESI
supports) to their absolute control over Plaintiffs federally protected right to gain
access to courts, e.g. the United States District Court, the United States Supreme
2 At risk of stating the obvious, McGinnis could not have filed documents with the Court in the first instance
if he did not have access to them. As discussed further in this order, McGinnis has filed dozens of documents in response
to the undersigned’s order to show cause. His ability to do so serves to undercut his assertions regarding inability to
obtain or otherwise access documents.
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Court.” (Id. at p. 6) (errors in original).
• 	“#2 E-filing date, breach forces a disadvantage for this prosecutors and prosecution
team over plaintiff.” (Id.) (errors in original).
• 	‘The disputes, issues, controversies do involve ESI of 1121 South 11st St. Edwington
Apartments, the perjured testimonies of drug treatment & the IPHone, Samsung
phone, Cricket, Verizon, Straight Talk contracts of the data breach.” (Id. at p. 7).
(errors in original).
• 	“Tyler Henery perjured his testimonies that now has NDSP employees protecting one
of their gang of “inevitables.’” (Id.) (errors in original).
• 	The state court judge presiding over his revocation hearing “[took] disadvantage of
in his exercises of an abuse of discretion of refusing to allow biometric date of
exculpatory evidence to be admissible.” (Id. at pp. 7-8) (errors in original).
II. 	DISCUSSION
Rule 4 of the Rule Governing § 2254 Cases requires the Court to promptly examine a
petition to determine “if it plainly appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief.” Given that pro se petitioner’s generally lack expertise,
“courts should review habeas petitions with a lenient, eye, allowing borderline cases to proceed.”
Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983). 	That being said, 	if 	the Court
determines that the petitioner is not entitled to relief, it may summarily dismiss the petition.
McFarland v. Scott, 512 U.S. 849, 85 (1994) (“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its face.”); see also Lonchar v. Thomas, 517
U.S. 314, 320 (1996); See 28 U.S.C. § 2243 (“A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent
to show cause why the writ should not be granted, unless it appears from the application that the
applicant or person detained is not entitled thereto.”).
Insofar as McGinnis is asserting claims regarding his security classification, treatment by
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NDSP staff, and/or conditions of confinement at the NDSP, he is not entitled to relief in the context
of this action. See Nelson v. Campbell, 541 U.S. 637, 643 (2004); Hill v. McDonough, 547 U.S.
573, 579 (2006). 	Condition of confinement claims must be brought pursuant to some other
procedure, such as a civil rights action pursuant to 42 U.S.C. § 1983. See Nelson, 541 U.S. at 643
("[C]onstitutional claims that merely challenge the conditions of a prisoner's confinement, whether
the inmate seeks monetary or injunctive relief, fall outside of that core and may be brought pursuant
to § 1983 in the first instance."); Davis v. Fisher, No. 13-CV-1024 PJS/SER, 2013 WL 3974520, at
*1 (D. Minn. Aug. 1, 2013) (challenges to conditions of confinement must be brought through a
traditional civil rights action and not through a habeas petition); see e.g., Lopez v. Wetzel, No.
CIV.A. 12-96, 2012 WL 345215, at *2 (W.D. Pa. Feb. 1, 2012) ("[W]hen the challenge is to a
condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo
his conviction, [a civil rights] action under § 1983 [or Bivens] is appropriate." (alternations in
original) (quoting Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)); cf. Stanko v. Quay, 356 Fed.
App’x 	208, 	208–10 	(10th 	Cir. 	2009) 	(challenge 	to 	security 	designation 	was 	a
conditions-of-confinement claim that must be brought through a traditional civil-rights action, not
a § 2241 petition). These claims should therefore be dismissed.
Moving on, McGinnis’s response to the order to show cause, supplemental response, and
“supplemental affidavit” do not provide any clarification with respect to the second, third, and fourth
grounds for relief asserted by McGinnis in his petition. These grounds remain indecipherable and
should therefore be dismissed.
What McGinnis styles as his first ground for relief appears to be two distinct claims: (1)
denial of Brady materials; and (2) ineffective assistance of counsel. 	Yes, McGinnis also made
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assertions regarding prosecutorial misconduct, malicious prosecution, perjury, and abuse of judicial
discretion. 	However, it is apparent after sifting through of all of his submissions that these
assertions are intertwined with his Brady claims to such an extent they are inseparable. 	For
example, the perjury alleged by McGinnis is the probation officer’s testimony that there was no ESI.
The abuse of discretion alleged by McGinnis was the weight given by state district court to the
probation officer’s testimony. Consequently, to the undersigned’s eyes, these assertions do constitute
the bases for separate claims or grounds for relief.
Having now sifted through McGinnis’s submissions, the undersigned finds that he has failed
to satisfy the requirements of Rule 2(c) with respect to his Brady claim. Rule 2(c) requires that the
petition “specify all the grounds for relief which are available to the petitioner and of which he has
or by the exercise of reasonable diligence should have knowledge" and that the petition “set forth
in summary form the facts supporting each of the grounds thus specified." 28 U.S.C. § 2254, Rule
2(c) of the Rules Governing § 2254 Cases; Advisory Committee Note to Rule 4 of the Rules
Governing Section 2254 Cases (“‘[N]otice’ pleading is not sufficient, for the petition is expected
to state facts that point to a ‘real possibility of constitutional error.’”); see also Mayle v. Felix, 545
U.S. 644, 655 (2005) (describing the rules governing pleading for Section 2254 habeas petitions as
“more demanding” than the notice pleading allowed under Fed. R .Civ .P. 8); McFarland v. Scott,
512 U.S. 849, 856 (1994) (“Habeas corpus petitions must meet heightened pleading requirements
. . . .”); Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990) (holding that substantial
compliance with Rule (c) requires the petitioner to "state specific, particularized facts which entitle
him or her to habeas corpus relief for each ground specified"). Although McGinnis has submitted
a lot, he has said very little of substance that the undersigned can discern.
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In his various submissions, McGinnis repeatedly asserts that he was denied ESI. As best as
the undersigned can tell from McGinnis’s submissions, the ESI that he believes the prosecution
wrongfully withheld from him consisted of data unlawfully obtained from his IPhone and other
unlawful electronic surveillance of him.
I Phone data was hacked, illegal obtained Plaintiff is recorded on transcripts is this
ESI they say doesn’t exist, objecting that probation officer lied they didn’t hack
phone. 	Plaintiff spoke to each and every appointed attorney specifically to this
illegal obtaining of ESI of I phone data. 	(This included Tyler Henerys perjured
testimonies of being “kicked out” out of drug treatment centers in his hate motivated
retaliation because plaintiff had his medicade [illegible] for local drug treatment
centers [illegible] not his “dictated” choices of Thompkens in Jamestown) . . . The
eSI includes various other private, confident, privileged residences, hotels of this
illegal surveillance.
(Doc. No. 10 at pp. 3-4) (errors in original).
The undersigned cannot discern from all that McGinnis submitted exactly how or why
McGinnis believes the ESI allegedly withheld by the prosecution was exculpatory (or why he could
not otherwise access data from his own IPhone). 	To make matters more confusing, McGinnis
makes repeated references in his various submissions to ESI he claims was denied him by the state
hospital and the NDDOCR. It is not clear if this ESI is different from that which was allegedly
withheld from him by the prosecution. On top of this, large portions of McGinnis’s submissions are
simply illegible.
In regards to his claim of ineffective assistance of counsel, McGinnis tried to elaborate on
the basis for it in his response and supplemental affidavit. Regrettably, the additional information
that he has supplied is of little help. As best as the undersigned can discern, the basis for McGinnis’s
claim for ineffective assistance is counsel’s failure to file motions as requested. However, McGinnis
does not identify which of his attorneys failed to file his proposed motions, does not elaborate on
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the subject matter or basis for his proposed motions, and does not make it clear when he wanted the
motions to be filed (during the course of his initial proceedings that culminated in his convictions
or during the course of his revocation proceedings).
In sum, McGinnis has failed to provide any meaningful factual support for his grounds for
relief. It is not incumbent on Respondent or the Court to hunt through the record of McGinnis’s
state court proceedings for facts that could arguably form the basis for his claims and, in so doing,
make a case for him. See Adams, 897 F.2d 332, 333-34 (“We do not believe that 28 U.S.C. § 2254
or the Section 2254 Rules require the federal courts to review the entire state court record of habeas
corpus petitioners to ascertain whether facts exist which support relief. Requiring such an exhaustive
factual review of entire state court records would pose an insuperable burden on already strained
judicial resources. We join the numerous federal courts which have repeatedly expressed their
unwillingness to sift through voluminous documents filed by habeas corpus petitioners in order to
divine the grounds or facts which allegedly warrant relief.”).
III. 	CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may only issue if the applicant
has made a substantial showing of the denial of a constitutional right. When the court has rejected
a petitioner's claim on the merits, the substantial showing required is that the "petitioner must
demonstrate that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)); see also United States v. Lambros, 404 F.3d 1034, 1036
-1037 (8th Circ. 2005); Garret v. United States, 211 F.3d 1075, 1076 -1077 (8th Cir. 2000). When
a court denies a petitioner's claim on procedural grounds without reaching the merits, the petitioner
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must demonstrate that reasonable jurists would find it debatable that a valid claim for the denial of
constitutional rights has been stated and that court was incorrect in its procedural ruling. Slack, 529
U.S. at 484.
Based on the authority cited in this report and the state of record, it is clear that McGinnis
has not met his burden with respect to the issuance of a certificate of appealability. Reasonable
jurists would not debate over the correctness of this Court’s dismissal of McGinnis’ habeas petition
for failure to comply with the Rules Governing § 2254 Cases.
IV. 	CONCLUSION AND RECOMMENDATION
I RECOMMEND that McGinnis’s habeas petition (Doc. No. 2) be DISMISSED without
prejudice pursuant to Rule 4 of the Rules Governing § 2254 Cases. I further RECOMMEND that
no certificate of appealability be issued to McGinnis.
NOTICE OF RIGHT TO FILE OBJECTIONS
McGinnis shall have until May 8, 2023, to file any objections to this recommendation.
D.N.D. Civ. L.R. 72.1(D)(3). Failure to file appropriate objections may result in the recommended
action being taken without further notice or opportunity to respond.
IT IS SO ORDERED.
Dated this 20th day of April, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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