DuMarce v. State of South Dakota/Roberts County

Filing 7

ORDER denying 1 Petition for Writ of Habeas Corpus (28:2254) and denying as moot 2 MOTION for Leave to Proceed in forma pauperis filed by Marlon Troy DuMarce. Signed by U.S. District Judge Charles B. Kornmann on 12/21/2017. (SAC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF SOUTH DAKOTA

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NORTHERN DIVISION
MARLON TROY DUMARCE,

1:17-CV-01015-CBK

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Petitioner,

vs.
STATE OF SOUTH DAKOTA/ROBERTS
COUNTY,
Respondent.

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ORDER

Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging constitutional violations in connection with his March 16, 2017, conviction and
sentence in the Fifth Judicial District, Roberts County, South Dakota. He asserts that
counsel was ineffective, inter a/ia, in failing to investigate and pursue his claim that the
police officer who initially stopped him and subsequently arrested him for ingestion
lacked jurisdiction to do so. These claims were the subject of his § 1983 claim in CIV
16-10047. That matter was dismissed as frivolous.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") requires
petitioner to exhaust available state court remedies prior to seeking federal habeas corpus.
28 U.S.C. § 2254(b)(l)(A), Sasser v. Hobbs, 735 F.3d 833, 842 (8th Cir. 2013). "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 (8th Cir. 1988). A
state court habeas remedy is available to plaintiff pursuant to SDCL 21-2 7-1. The
petition does not show that petitioner has in fact exhausted his state court habeas
remedies. Indeed, given the fact that he filed this petition less than three months after his
guilty plea and sentencing, he has not even exhausted his state court right to appeal his
conviction and sentence. Pursuant to 28 U.S.C. § 2254(b), the petition must be dismissed
without prejudice to allow petitioner an opportunity to exhaust his state court remedies.

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Now, therefore,
IT IS ORDERED that the petition for a writ of habeas corpus is denied without
prejudice for failure to exhaust state court remedies. The motion, Doc. 2, for leave to
proceed in forma pauperis is denied as moot.
DATED this 21st day of December, 2017.
BY THE COURT:

United States District Judge

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