Garcia v. Weber et al
AMENDED ORDER denying 1 Petition for Writ of Habeas Corpus (28:2254) filed by Ramon Valerio Garcia, denying 21 Amended MOTION to Dismiss for Failure to Exhaust filed by Marty J. Jackley, Douglas Weber. Signed by Chief Judge Karen E. Schreier on 11/3/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
RAMON VALERIO GARCIA,
DOUGLAS WEBER, Warden, and
MARTY J. JACKLEY, Attorney
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Petitioner, Ramon Valerio Garcia, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondents oppose Garcia’s petition,
asserting that Garcia failed to exhaust state remedies. Garcia’s petition is
subject to dismissal because he failed to exhaust state remedies and his
petition is barred by the one-year statute of limitations applicable to federal
petitions for writ of habeas corpus.
Garcia was convicted of rape in the first degree and sexual contact with a
child under sixteen years in a South Dakota state court on March 1, 2006. He
was sentenced to seventy-two years in prison for the rape conviction, and there
was no pronouncement of sentence for the sexual contact with a child under
sixteen years charge because both counts arose from the same circumstances.
Garcia and his wife babysat the victim, V.S.S., and were acquainted with
her mother. V.S.S. testified that Garcia had her suck Garcia’s penis until
something came out into her mouth. Garcia then had V.S.S. continue to suck
on his penis. V.S.S. testified she was not wearing pants but remained in her
panties during the incident. Garcia pleaded not guilty, but did not testify at his
Garcia filed a direct appeal alleging several grounds for relief. These
grounds were: (1) the trial court should have granted a mistrial with regard to
an improper jury instruction; (2) there was prosecutorial misconduct by the
prosecutor putting her experience into issue and labeling a witness as an
expert; (3) hearsay statements from a prosecution witness should have been
excluded; and (4) the trial court should have vacated the sexual contact with a
child count as it arose out of the same interaction as the rape conviction on
February 21, 2007. The South Dakota Supreme Court affirmed the conviction
and the sentence on the rape in the first degree charge but remanded with
orders to vacate the conviction on the sexual contact with a child under sixteen
Garcia then filed a petition for writ of habeas corpus on April 2, 2008, in
the Second Judicial Circuit of South Dakota. Garcia alleged various grounds
for relief. These grounds were: (1) the prosecutor and judge improperly vouched
for the credibility of V.S.S.; (2) there was improper contact between a juror and
the bailiff; (3) the court erred in not ordering a psychosexual evaluation; and
(4) defense counsel failed to object to prosecutorial vouching for V.S.S. The
state circuit court denied Garcia’s petition for a writ of habeas corpus on
July 31, 2009. The circuit court granted a certificate of probable cause, but the
South Dakota Supreme Court denied a certificate of probable cause on
December 4, 2009.
On October 8, 2010, Garcia filed a pro se petition for a writ of habeas
corpus with this court pursuant to 28 U.S.C. § 2254. Garcia advances several
grounds for relief: (1) his Fifth through Fourteenth Amendment Due Process
rights were violated by the refusal to admit other acts evidence under SDCL 1912-5; (2) trial counsel were ineffective for not making a motion for a directed
verdict based on the insufficiency of evidence and for not challenging any of the
“elements of evidence” admitted by the prosecutor; (3) his Fifth through
Fourteenth Amendment due process rights were violated when the court
admitted into evidence the statement that Garcia had “gone to see a lawyer;”
and (4) his Fifth through Fourteenth Amendment rights were violated because
of bias with regard to the admission of evidence by the circuit court.
On October 26, 2010, Garcia filed an amended petition adding a fifth
ground. His fifth claim is that his Fifth and Fourteenth Amendment due
process rights were violated because the court proceedings went past the 180day speedy trial rule without Garcia’s consent. On February 2, 2011, Garcia
filed a motion to amend his habeas corpus petition to add a sixth ground for
relief. Garcia seeks relief because DNA evidence was not admitted at trial.
Specifically, Garcia argues that he was diagnosed with Hepatitis C in 1997 and
that his “Hepatitus [sic] C virus can be contacted [sic] through bodily fluids”
and the victim “does not have this same virus strain.” Docket 14 at 2. Garcia
contends that the DNA sample was not used as evidence, and if the DNA
sample had been admitted into evidence during the trial, “this finding would
and will exonerate” him. Docket 14 at 2. On February 18, 2011, Garcia’s
motion to amend was granted.
STANDARD OF REVIEW
Section 2254 of Title 28, as amended by the Antiterrorism and Effective
Death Penalty Act (AEDPA), governs a district court’s authority to grant writs of
habeas corpus to state prisoners. Section 2254 provides that a writ of habeas
corpus should “not be granted with respect to any claim that was adjudicated
on the merits in state court proceedings unless” the state court decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or
unless the state court decision “was based on an unreasonable determination
of the facts in light of the evidence presented. . . .” 28 U.S.C. § 2254(d). Under
the AEDPA, it is not enough to find that the state court applied clearly
established federal law erroneously or incorrectly–the application must also be
unreasonable. Williams v. Taylor, 529 U.S. 362, 411 (2000) (“an unreasonable
application is different from an incorrect one”). Thus, a federal court applies a
deferential standard of review when assessing a state court’s disposition of a
state habeas petition. See Barnett v. Roper, 541 F.3d 804, 814 (8th Cir. 2008).
This court may not consider a claim for relief in a habeas corpus petition
if the petitioner has not exhausted his state remedies. 28 U.S.C. § 2254(b).
“The exhaustion requirement of § 2254(b) ensures that the state courts have
the opportunity to fully consider federal-law challenges to a state custodial
judgment before the lower federal courts may entertain a collateral attack upon
that judgment.” Duncan v. Walker, 533 U.S. 167, 178-79 (2001). “[T]he state
prisoner must give the state courts an opportunity to act on his claims before
he presents those claims to a federal court in a habeas petition.” O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). If a ground for relief in the petitioner’s
claim makes factual or legal arguments that were not present in the petitioner’s
state claim, then the ground is not exhausted. See Kenley v. Armontrout, 937
F.2d 1298, 1302 (8th Cir. 1991). The exhaustion doctrine protects the state
courts’ role in enforcing federal law and prevents the disruption of state judicial
proceedings. Rose v. Lundy, 455 U.S. 509, 518 (1982).
A four-step analysis governs whether a federal court can consider a
habeas petition when the petitioner has not presented the claims to the state
court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988). Initially, “the
court must determine if the petitioner fairly presented the federal constitutional
dimensions of his federal habeas corpus claim to the state courts.” Id. If not,
the federal court must next consider whether the exhaustion requirement is
nevertheless met because no “currently available, non-futile state remedies
through which petitioner can present his claim” exist. Id. (quoting Laws v.
Armontrout, 834 F.2d 1401, 1412 (8th Cir. 1987)). If a state remedy does not
exist, the court must determine whether petitioner has demonstrated
“adequate cause to excuse his failure to raise the claim in state court properly.”
Id. (quoting Laws, 834 F.2d at 1415). If petitioner has shown sufficient cause,
the court must decide whether he has “shown actual prejudice to his defense
resulting from the state court’s failure to address the merits of the claim.” Id.
The petitioner must prevail at each step of the analysis to prevent dismissal of
his petition. Id.
Claims Presented to the State Court
Fairly presenting a federal claim requires more than simply going
through the state courts:
The rule would serve no purpose if it could be satisfied by raising
one claim in the state courts and another in the federal courts.
Only if the state courts have had the first opportunity to hear the
claim sought to be vindicated in a federal habeas proceeding does
it make sense to speak of the exhaustion of state remedies.
Accordingly, we have required a state prisoner to present the state
courts with the same claim he urges upon the federal courts.
Picard v. Connor, 404 U.S. 270, 276 (1971). It is also not enough for the
petitioner to assert facts necessary to support a federal claim or to assert a
similar state-law claim. Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993).
“A claim is considered exhausted when the petitioner has afforded the highest
state court a fair opportunity to rule on the factual and theoretical substance of
his claim.” Id. “The petitioner must ‘refer to a specific federal constitutional
right, a particular constitutional provision, a federal constitutional case, or a
state case raising a pertinent federal constitutional issue.’ ” Id. In other words,
“state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the state’s established
appellate review process before presenting those issues in an application for
habeas relief in federal court.” O’Sullivan, 526 U.S. at 845. This does not,
however, require petitioner to cite “book and verse on the federal constitution.”
Picard, 404 U.S. at 278 (citing Daugharty v. Gladden, 257 F.2d 750, 758 (9th
Cir. 1958)). The petitioner must simply make apparent the constitutional
substance of the claim. Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir. 1992).
Respondents assert that Garcia’s original four claims as well as the sixth
claim about DNA testing are unexhausted. Respondents do not mention
Garcia’s fifth claim of the 180-day requirement in their responsive brief. But
the state’s failure to address Garcia’s fifth claim does not waive the exhaustion
argument. “A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the
State, through counsel, expressly waives the requirement.” 28 U.S.C.
§ 2254(b)(3). As a result, the court must examine whether Garcia has
exhausted all six asserted grounds for relief because respondents did not
expressly waive the exhaustion requirement.
Garcia’s first claim is that the trial court erred in refusing to admit
evidence of other acts under SDCL 19-12-5. Garcia cites SDCL 19-9-5 but does
not explain what evidence should have been admitted and what inadmissible
evidence should have been kept from the jury. Garcia did not make any claim
about a refusal to admit other acts evidence in his direct appeal or in his state
habeas petition. Moreover, Garcia did not directly petition the South Dakota
Supreme Court for a certificate of probable cause as to this issue pursuant to
SDCL 21-27-18.1. Accordingly, this claim is unexhausted.
Garcia’s second claim is that his Sixth Amendment right to counsel was
violated because his counsel were ineffective for failing to move for a directed
verdict based on insufficiency of the evidence and not challenging any of the
elements of evidence. Garcia cites SDCL 21-25-1 and argues that there was
“plain error affecting substantial rights although they were not brought to the
attention of the court.” Docket 1 at 6. Garcia made claims of ineffective
assistance of counsel at the state appellate and habeas levels of review, but he
did not base the ineffective assistance of counsel claim on a failure to object on
these bases. Garcia sought a certificate of probable cause from the South
Dakota Supreme Court based on ineffective assistance of counsel, but not for
the reasons cited in this petition. This claim is, therefore, unexhausted.
Garcia’s third claim is that his due process rights were violated by the
court’s abuse of discretion, prosecutorial misconduct, and jury bias because
respondents’ comment that the defendant “went to see a lawyer” violated the
presumption of innocence. Docket 1 at 7. Garcia did not present this as a
ground for relief in his state appeal nor did he present this as a ground for
state habeas relief. Garcia did not seek a certificate of probable cause from the
South Dakota Supreme Court for this claim. This claim is unexhausted.
Garcia’s fourth claim is that his due process rights were violated and he
attacks the credibility of the circuit court. Garcia references an order admitting
evidence for a limited purpose as the foundation of the bias. The specifics of
the order were not identified. Garcia did not raise on appeal the improper
admission of this evidence for a limited purpose, nor did Garcia raise such a
claim in his state habeas petition. Finally, Garcia did not seek a certificate of
probable cause from the South Dakota Supreme Court based on the improper
admission of evidence or the credibility of the circuit court. Thus, this claim is
Garcia’s fifth claim is that his due process rights were violated when the
court proceeding went past 180 days without Garcia’s waiving the right to a
speedy trial within the 180-day time frame. Rather, Garcia’s lawyer waived
Garcia’s right to a speedy trial. Garcia complained of the 180-day requirement
being waived by his lawyer in a class action lawsuit he filed previously. The
class action lawsuit was dismissed without comment regarding the speedy trial
violation. I.S.B. v. S.D. Comm’r of Admin., 10-cv-4142 (D.S.D. 2010), 2011 U.S.
Dist. LEXIS 37036 (D.S.D. 2011). Garcia did not raise this issue on direct
appeal. This issue was not addressed in Garcia’s state petition for a writ of
habeas corpus and the state circuit court did not issue a certificate of probable
cause on this issue. Nor did Garcia file a separate motion for issuance of a
certificate of probable cause with the South Dakota Supreme Court. This
ground is unexhausted. Even though respondents did not respond to this claim
in their brief, because exhaustion cannot be waived, the claim cannot go
forward despite respondents’ lack of argument.
Garcia’s sixth claim is that he would be exonerated “if a DNA sample was
allowed in court” to show that Garcia has Hepatitis C and his victim does not
because the “Hepatitus [sic] C virus can be contacted [sic] through bodily
fluids” and Garcia’s Hepatitis C diagnoses predated the charged offense. Docket
14 at 1. Garcia did not raise on appeal to the South Dakota Supreme Court the
non-usage of DNA in his trial nor did he include the DNA evidence claim in his
state habeas petition. Garcia did not seek a certificate of probable cause from
the South Dakota Supreme Court for this claim. Garcia has not exhausted this
Thus, the court finds all claims are unexhausted.
Available Non-Futile State Remedies
“Only after some clear manifestation on the record that a state court will
not entertain petitioner’s constitutional claims even if fairly presented will the
exhaustion requirement be disregarded as futile.” Smittie, 843 F.2d at 297
(citing Eaton v. Wyrick, 528 F.2d 477, 482 (8th Cir. 1975)). Garcia has not
demonstrated that current, non-futile state remedies do not exist for all of the
claims that he failed to present to the state courts. SDCL 21-27-16.1 states:
Any ground not raised, finally adjudicated or knowingly and
understandingly waived in the proceedings resulting in his
conviction or sentence or in any other proceeding that the
applicant has taken to secure relief from his conviction, or
sentence, may not be the basis for a subsequent application,
unless the court finds grounds for relief asserted which for
reasonable cause were omitted or inadequately raised in the
original, supplemental, or amended application.
While SDCL 21-27-16.1 seems to prohibit subsequent habeas petitions to
South Dakota courts that raise grounds for relief not raised in an original
petition, the law does allow a petitioner to file a subsequent petition when the
state court “finds grounds for relief asserted which for reasonable cause were
omitted or inadequately raised in the original . . . application.” SDCL 21-27-161.
The South Dakota courts may find that there was reasonable cause for
Garcia to omit certain claims in his original petition. Garcia was represented by
counsel in his state habeas proceedings. The South Dakota Supreme Court has
held that the reasonable cause requirement of SDCL 21-27-16.1 is satisfied “by
a showing of ineffective assistance of counsel in the original habeas corpus
proceeding.” Goodroad v. Weber, 671 N.W.2d 838, 839 (S.D. 2003).
Additionally, the Eighth Circuit has held that there is a possibility that nonfutile state court remedies remain available to a petitioner in South Dakota
upon a showing of reasonable cause pursuant to SDCL 21-27-16.1. Ashker, 5
F.3d at 1180. Because there may be a non-futile state procedure available and
Garcia has not shown good cause, there is no need to address the remaining
steps under Smittie v. Lockhart, 843 F.2d 295 (8th Cir. 1988). Garcia must
exhaust the state habeas procedures before a federal court can entertain his
habeas petition. But even if Garcia was not required to exhaust state remedies,
his petition would be dismissed because it is untimely.
Garcia’s Petition is Untimely.
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), state
prisoners have one year to file their federal petitions for writ of habeas corpus.
28 U.S.C. § 2244(d)(1). The one-year statute of limitations is triggered by “the
date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). If a
prisoner files a petition for certiorari, then his conviction becomes final upon
“the completion or denial of certiorari proceedings before the United States
Supreme Court.” Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). If the
prisoner does not petition the United States Supreme Court, then his
conviction becomes final when the time for filing that petition expires, so long
as the Supreme Court could have reviewed his direct appeal. Riddle v. Kemna,
523 F.3d 850, 855 (8th Cir. 2008). The statute of limitations is tolled during
the time that an application for post-conviction or other collateral review is
pending in state court. 28 U.S.C. § 2244(d)(2). Although respondents did not
raise the statute of limitations defense in their motion to dismiss, the court
considers it sua sponte because respondents have not intelligently waived it.
See Boston v. Weber, 525 F.3d 622, 626-27 (8th Cir. 2008) (finding that state
had not waived statute of limitations defense to petition where it never
explicitly conceded the petition was timely).
The Eighth Circuit has held that a state conviction becomes final after all
direct appeals in the state system are final, followed by the 90 days that are
allotted to file a petition of certiorari to the United States Supreme Court.
Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003); Sup.
Ct. R. 13. Under the AEDPA, the statute of limitations is tolled while “a
properly filed application for State post-conviction review is pending.” 28 U.S.C.
§ 2244(d)(2). Garcia was convicted on April 27, 2006. The South Dakota
Supreme Court affirmed his conviction on February 21, 2007. Thus, his
conviction became final 90 days later, on May 22, 2007. Garcia waited 336
days before filing his state habeas petition on April 22, 2008. This period counts
against the statute of limitations, leaving Garcia only 29 days remaining on the
statute of limitations. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001)
(holding state proceedings are not pending during the time between the end of the
time for direct review and the date an application for state post-conviction relief is
filed). The state circuit court denied Garcia’s habeas petition on July 31, 2009.
On December 4, 2009, the South Dakota Supreme Court denied his motion for
a certificate of appealability. The remaining 29 days lapsed on January 2,
Garcia did not file his federal habeas petition until October 4, 2010, 307
days after the South Dakota Supreme Court denied his motion for a certificate
of appealability. Approximately 643 days count against Garcia. Accordingly,
Garcia’s petition for federal habeas corpus relief is dismissed because it is time
barred under § 2244(d)(1). Therefore, it is
ORDERED that Garcia’s petition for habeas corpus pursuant to 28
U.S.C. § 2254 (Docket 1) is denied. Garcia is notified that he may not appeal
the denial of his motion unless he receives a certificate of appealability
from this court. In order to receive a certificate of appealability, Garcia is
required to make a “substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules
Governing Section 2254 Proceedings for the United States District Courts,
Garcia will have 21 days to submit arguments on whether a certificate of
appealability should issue. Garcia is directed to identify the issues for
which he seeks a certificate of appealability. Respondents will have 14
days to respond to Garcia’s arguments.
IT IS FURTHER ORDERED that Garcia's federal petition for writ of
habeas corpus (Docket 1) is denied and respondents’ motion to dismiss (Docket
21) is granted.
Dated November 3, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER