Duffy v. Brown County

Filing 64

OPINION AND ORDER denying 3 Motion for Leave to Proceed in forma pauperis; denying as moot 54 Motion for Immediate Judicial Remedy; denying as moot 55 Motion for Judgment. Signed by Charles B. Kornmann on 8/27/12. (SKK)

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UNITED STATES DISTRICT COURT

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AUG 2 7 Z01Z

DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

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Petitioner,

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Respondent.

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SHAWN DUFFY,

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FILED

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CIV 12·1007

OPINION AND ORDER

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Petitioner previously filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 contending that he was detained at the Brown County, South Dakota,jail
in violation of his rights under the United States Constitution. specifically his right to the
assistance of counsel and a speedy trial under the Sixth Amendment. He also contended
that his jailors were interfering with his First and Sixth Amendment rights to send and
receive legal mail.
The record in the previous case showed that petitioner was arrested on March 17.
2011. and charged by criminal complaint in the Fifth Judicial Circuit. Brown County,
South Dakota, with three counts of possessing controlled substances - Ridalin, Xanax,
and Endocet· by theft, misrepresentation, forgery. or fraud, one count of keeping a place
for the use or sale ofa controlled substance, and one count of the use or possession of
drug paraphernalia. On April 21, 2011, a grand jury returned an indictment charging the
identical charges set forth in the previous complaint with the addition of two more
charges of possession of a controlled substance - Hydrocodone and Methadone. On June
23, he was charged with attempted possession of alcohol in his jail cell. On June 30,
2011, the State filed an habitual offender information.

I issued an order to Brown County to show cause and the matter came on for
hearing on December 27, 20 II. The parties were ordered to file simultaneous briefs on
December 30, 20 II. On that day, he was charged by complaint with assaulting another
inmate which alleged crime took place in November of 2011. Petitioner claimed that, in
filing of the additional charge on December 30, the prosecutor acted out of vindictiveness
and in an attempt to prevent the federal court from issuing a writ of habeas corpus and
ordering the release of petitioner. Petitioner was at that time scheduled to go to trial in
February, 2012, nearly a year after he was arrested.
I found that the filing of the charge on December 30 after the habeas corpus
hearing was held and in connection with an offense alleged to have occurred in
November was indeed suspicious. I also found that petitioner's claims as to violations of
his Constitutional right to a speed trial raised at least a colorable issue. However, the
petitioner had failed to exhaust his state court remedies and the application was denied.
Petitioner filed the instant petition for a writ of habeas corpus in March 2012. He
again contends that he has not been timely brought to trial in state court and that he is
without the effective assistance of counsel. He has made various other complaints in his
supporting paperwork as well. He challenges the conditions of his pre-trial confinement,
claims that he has been unfairly treated by one jailor, has been in 23 hour a day lock
down, and that his inmate moneys are being mishandled.
The file indicates that, On February 21, 2012, eleven months after his arrest, the
Brown County States Attorney dismissed four counts of his original charges for obtaining
a controlled substance by theft, misrepresentation, forgery, or fraud. On May 7, 2012,
petitioner was indicted in state court for the alJeged possession of alcohol or marijuana in
jail on March 8,2012. State court appointed counse,l Chris Dohrer filed a motion in state
Circuit Court on May IS, 2012, to dismiss the state court indictment on the grounds that
the defendant's right to a speedy trial had been violated. On June 26, 2012, petitioner
was returned to the Human Services Center in Yankton, South Dakota, for another
competency evaluation. The evaluator stated that he spent two hours evaluating the
petitioner. No other court documents exist in the file to show what has transpired in state
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court. Petitioner claims in his letters that he did not see his state court appointed counsel
between March and August. His trial on at least some of the charges was scheduled for
August 22,2012, and has now been held. He has been convicted by a state court jury of
some of the charges.
As I set forth in my opinion and order in Duffy v. Brown Coun'ij', CIV 11-1038,
although there were clearly irregularities in the state court proceedings and at least a
colorable claim that the petitioner's Sixth Amendment right to a speedy trial was violated
as to some ofthe charges he was facing, he must first present those claims to the state
courts prior to filing a federal petition seeking habeas corpus.
There is nothing in the record to indicate whether petitioner has been convicted of
any of the charges filed against him in state court although the local newspaper has
reported the convictions. After being sentenced in state court, he can appeal his
conviction and sentence, along with any denial of his pretrial motion to dismiss, to the
South Dakota Supreme Court. If he is not successful, he must exhaust his state court
habeas remedies pursuant to SDCL 21-27-1 as required by 28 U.S.C. § 2254(b) prior to
asserting these claims in federal court.
Based upon the forgoing,
IT IS ORDERED:
1. Petitioner's petition for a writ of habeas corpus is denied.
2. Petitioner's motion, Doc. 3, to proceed informa pauperis, is denied as moot.
3. Petitioner's motions, Docs. 54 and 55, are denied as moot.
Dated thisc2.Z

~ of August, 2012

BY THE COURT:

ATIEST:
JOSEPH HAAS, CLERK

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United States District Judge

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DEUTY
(SEAL)
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