Nelson v. Dooley et al
ORDER DENYING 1 PETITION FOR WRIT OF HABEAS CORPUS AND ORDER DENYING CERTIFICATE OF APPEALABILITY; denying 4 Motion to Appoint Counsel ; denying as frivolous 5 Motion for Bond; denying as frivolous 8 Motion to take mandatory judicial notic e and declaration ; denying as frivolous 9 Motion to Alter or Amend Previous Judgments; and granting 2 Motion for Leave to Proceed in forma pauperis Petitioner however, shall pay the $5.00 statutory filing fee. Signed by U.S. District Judge Charles B. Kornmann on 02/17/2017. (SAC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
FRANKLIN SANDOVAL NELSON,
ROBERT DOOLEY and MARTY J.
FEB 2 I 2017
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
AND ORDER DENYING
CERTIFICATE OF APPEALABILITY
Petitioner was convicted ofthird degree rape in the South Dakota Fifth Judicial
Circuit Court, Roberts County, and was sentenced on October 23, 2014, to 25 years
custody. He previously filed in federal court a civil rights complaint pursuant to 42
U.S.C. § 1983, Civ 15-1001. He sought an order vacating his conviction and release
from custody. His complaint was construed as a petition for a writ of habeas corpus,
which petition was dismissed without prejudice for failure to exhaust state court
Petitioner subsequently filed post-conviction relief motions in his state criminal
case as well as a state habeas corpus petition. The state habeas corpus petition is still
Petitioner has now filed this second petition for a writ of habeas corpus,
challenging his state court rape conviction. He has also filed a motion to proceed without
the prepayment offees and an affidavit informa pauperis pursuant to 28 U.S.C. § 1915.
Petitioner has made the requisite showing under 28 U.S.C. § 1915(a). Accordingly, his
motion to proceed
will be granted. Pursuant to 28 U.S.C. § 1915(b)(1),
petitioner is required to pay the statutory filing fee of$5.00 for this action. See 28 U.S.C.
§ 1914(a). Petitioner filed a motion for the appointment of counsel which, in this case, is
I have conducted an initial consideration ofthe motion, as required by Rule 4 of
the Rules Governing Section 2254 Proceedings for the United States District Courts.
Petitioner is required to exhaust state court remedies prior to bringing federal
habeas corpus claims. 28 U.S.C. § 2254(b)(1)(A), "The exhaustion requirement has as
its purpose giving state courts 'the first opportunity to review federal constitutional issues
and to correct federal constitutional errors made by the state's trial courts.'" Smittie v.
Lockhart. 843 F.2d 295. 296-97 TSth Cir. 1988V
Petitioner contends that the exhaustion requirement should be waived because the
South Dakota Supreme Court rejected his pro se documents attempting to appeal the state
trial court's failure to as yet rule on his post-conviction motions. Petitioner admits in his
petition that he filed a petition for a writ of habeas corpus in state court, which petition is
separate from the pending post-conviction relief claims he is raising in his criminal case.
The petition was filed in March 2016. Counsel was appointed for petitioner and it
appears the matter is proceeding through the state court. Petitioner is required to fully
exhaust state court habeas remedies before proceeding in federal court under § 2254.
Petitioner has filed a motion for a "PR bond pending appeal." There is no federal
court appeal pending and there is no authority for a federal district judge to order the
release ofa state court prisoner unless a writ of habeas corpus issues. No writ of habeas
corpus can issue until the state court first has a full opportunity to consider petitioner's
Based upon the foregoing,
IT IS ORDERED:
1. Petitioner's motion. Doc. 2, to proceed without the prepayment of fees is
granted. Petitioner, however, shall pay, through the Clerk of Court in Pierre, South
Dakota, the $5.00 statutory filing fee for the above-captioned habeas action.
2. The petition is dismissed without prejudice for failure to exhaust state court
3. The motion. Doc. 4, to appoint counsel is denied.
4. All other motions are denied as frivolous.
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
Petitioner filed a second petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging his state court rape conviction. This Court denied petitioner's petition
for a writ of habeas corpus on the basis that his state court habeas petition is still pending.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only if the
applicant has made a substantial showing of the denial of a constitutional right.
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.
This construction gives meaning to Congress' requirement that a prisoner
demonstrate substantial underlying constitutional claims and is in
conformity with the meaning of the "substantial showing" standard ...
Where a plain procedural bar is present and the district court is correct to
invoke it to dispose ofthe case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further. In such a circumstance, no
appeal would be warranted.
Slack V. McDaniel. 529 U.S. 473,484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542(2000)
(emphasis supplied). Petitioner did not and has not made a substantial showing that
jurists of reason would find it debatable whether the petition was correctly dismissed.
IT IS HEREBY CERTIFIED that there does not exist probable cause of an
appealable issue with respect to the Court's order denying petitioner's petition for a writ
of habeas corpus. This in no way hampers the petitioner's ability to request issuance of
the certificate by a circuit judge pursuant to Fed. R. App. P. 22.
DATED this I *7
of February, 2017.
BY THE COURT:
CHARLES B. KORNMANN
CHARLES B. KORNMAN
United States District Judge
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