Dowty v. B.O.P. et al
Filing
26
OPINION AND ORDER granting 12 Motion to Dismiss. Signed by U.S. District Judge Roberto A. Lange on January 21, 2015. (DLC)
FILED
JAN 2 1 2015
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
~~
CENTRAL DIVISION
3: 13-CV-03032-RAL
EARL DAVID DOWTY,
Plaintiff,
OPINION AND ORDER GRANTING
MOTION TO DISMISS
vs.
B.O.P., STATE OF SOUTH DAKOTA, and
MARTY JACKLEY,
Defendants.
I.
BACKGROUND
Earl David Dowty filed a § 2254 petition challenging his state court convictions as being
obtained in violation of his constitutional rights. Dowty is currently a prisoner in the custody of
the Federal Bureau of Prisons. Dowty pleaded guilty to Felon in Possession of a Firearm, United
States v. Dowty, CR-11-30026, Doc. 26, and wa,s sentenced to ten years in federal custody by
this Court on August 16,2011, Dowty, CR-11-30026', Doc. 38. The firearm to which Dowty
admitted possession was one of the firearms stolen in the burglaries for which he was convicted
in a South Dakota state court. Dowty, CR-II-30026, Doc. 24.
The federal sentence is being served concurrently with a forty-five-year sentence
imposed upon Dowty by the Circuit Court for the Sixth Judicial Circuit of South Dakota. Doc.
14-1 at 4; Doc. 14-2 at 4; Doc. 14-3 at 4. The circumstances surrounding Dowty's state court
convictions were summarized by the South Dakota Supreme Court in its opinion affirming
Dowty's state convictions:
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During a 25-day period in October and November 2010, three homes were
burglarized in rural Mellette County. The homes were located within 20 miles of
each other. The first burglary occurred on October 30, 2010. Upon returning
home at approximately 12:30 a.m. on October 31, 2010, Peter and Marla
Ferguson realized their home had been burglarized. Several items were missing
from the Ferguson home, including two televisions, two jewelry boxes, three
guns, Marla's work bag, and all the meat from their freezer. The Fergusons
reported the burglary to the Mellette County Sheriff's Office, which initiated an
investigation.
On November 6, 2010, Jeannine Woodward and Rose West left their
home around 9:00 a.m.
When Woodward and West returned home at
approximately 4:00 p.m., they discovered that several items were missing from
the freezer and that seven guns had been stolen. Outside, Woodward and West
noticed blood trailing from the driveway to the front door. However, there was no
blood inside their home. During the investigation of the burglary, the Mellette
County Sheriff's Department collected a sample of the blood from the front door
for DNA testing. At that time, no suspects were identified for either burglary.
The next burglary occurred on November 24, 2010. At approximately
7:00 p.m., Michael Williams returned home after having dinner with his family at
a co-worker's house. Williams's wife and children had a separate vehicle, and
planned to return home sometime after Williams. Upon entering his home,
Williams immediately saw two men he did not recognize. One of the two men
was rifling through the freezer, while the other man was attempting to remove the
television from the wall. The man by the freezer turned around and pointed a
handgun at Williams. Subsequently, Williams saw the man by the television
reach into his coat pocket. Williams then saw a laser beam flash across the wall.
Williams closed the front door and starte(t running away from the house. While
Williams was running, he saw the laser beam shining near him on the ground and
was then shot twice in the leg. Despite his injuries, Williams was able to access
the handgun he carried with him and fire one'shot in the air. Williams then called
911 on his cell phone. The two men fled the scene while Williams waited for
help. Once law enforcement arrived, Williams was transported to the hospital for
treatment. He eventually recovered from his injuries. Items stolen from
Williams's home included the handgun with the laser sight, a second handgun,
jewelry, coins, and a flashlight.
After Williams was transported to the hospital, law enforcement began
investigating the burglary and shooting. Agent Jason Jares, a law enforcement
officer employed by the South Dakota Division of Criminal Investigations (DC I),
led the investigation. One of the items recovered from the scene was a partially
smoked cigarette butt that had been found near the deck outside of the home. The
cigarette butt was sent to the DCI forensic lab for DNA testing.
As the investigation progressed, Earl Dowty and his stepson, Wayne
Richards, became the primary suspects in the burglary and shooting that took
place at Williams's home. Specifically, Dowty was suspected of being the
individual Williams observed standing at the freezer. Richards was suspected of
being the individual Williams observed attempting to remove the television from
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the wall, who shot Williams as Williams ran away from the house. Both Dowty
and Richards lived with Dowty's wife (Richards's mother), Rose Leading Fighter,
at her home in Parmelee, South Dakota, which is located within an Indian
reservation. Because the home was located on reservation land, Agent Jares
sought assistance with the investigation from a Federal Bureau of Investigation
(FBI) agent. The FBI agent obtained a federal search warrant for Leading
Fighter's home that permitted law enforcement to search for items stolen from
Williams's home.
The search warrant was executed on January 8, 2011. During the
execution of the search warrant, law enforcement did not locate any of the items
that had been stolen from Williams's home. Nevertheless, while searching the
home, law enforcement discovered a tan cloth bag with a buffalo skull imprinted
on the side. The bag contained various items including documents with the name
"Marla Ferguson" on them, a wallet, and, a jewelry box. Leading Fighter
consented to law enforcement taking possession of the bag and its contents.
Before executing the search warrant, Agent Jares was unaware of the
burglaries of the Ferguson and WoodwardlWest homes. However, Agent Jares
was informed of these two burglaries after recovering the bag containing the
documents with Marla Ferguson's name. Upon learning of these unsolved
burglaries, law enforcement realized that some of the items they had seen in plain
view while executing the search warrant at Leading Fighter's home were
consistent with items that had been stolen from the Ferguson home. Ultimately,
Leading Fighter consented to law enforcement taking custody of a jewelry box
and a television that had been stolen from the Ferguson home.
As investigations of the three burglaries continued, law enforcement
obtained additional evidence that connected Dowty and Richards to the
burglaries. For example, law enforcement discovered Dowty and Richards had
traded and pawned various guns that had been stolen during the burglaries of the
Ferguson, WoodwardlWest, and Williams homes. Specifically, on November 23,
2010, Richards pawned a rifle that had been stolen from the WoodwardlWest
home. Dowty was with Richards at the time, but Dowty remained outside the
pawn shop in a vehicle. The next day, Dowty pawned a rifle that had also been
stolen from the WoodwardIWest home.' Richards' was in the pawn shop with
Dowty at the time Dowty pawned the nfle: Furthermore, on two separate
occasions during fall 20'10, Dowty traded stolen guns to Jason Little Elk in
exchange for Little Elk performing repair work on Dowty's vehicle. The first gun
Dowty traded Little Elk was a rifle that had been stolen from the Ferguson home.
Richards was with Dowty at the time of the trade. In fact, Richards retrieved the
rifle and handed it to Little Elk. The second gun Dowty traded Little Elk was the
handgun with a laser sight that had been used to shoot Williams.
In addition, samples of both Dowty's and Richards's DNA were sent to
the DCI forensic lab to be compared with the blood sample collected at the
WoodwardlWest home and the cigarette butt collected at the Williams home.
DNA testing established that the blood sample collected from the front door of the
WoodwardlWest home was a match to Dowty. DNA testing of the cigarette butt
collected at the Williams home revealed the presence of DNA profiles from two
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individuals. The testing established that Richards was the major contributor and
Dowty was the minor contributor to the DNA found on the cigarette butt.
By joint information, Dowty and Richards were charged with 13 felonies
as a result of the three burglaries. Additionally, Dowty was accused of being a
habitual offender. Dowty was arraigned on September 22,2011, and he pleaded
not guilty to the charges. Meanwhile, Richards entered into a plea agreement
with the State in which he pleaded guilty to two of the charges stemming from the
burglary and shooting that took place at the Williams home.
On January 30,2012, Dowty fileda motion to sever charges and for relief
from prejudicial joinder. Dowty sought four ,separate trials: one trial for each of
the three burglaries and an additional trial for the charges related to the shooting
of Williams. The trial court issued a memorandum decision denying Dowty's
motion on May 2, 2012. The case proceeded to jury trial on September 24,2012.
Richards did not testify at trial.
At the close of the State's case, Dowty moved for judgment of acquittal on
all charges related to the burglaries of the Ferguson and WoodwardlWest homes.
Dowty argued that although he was charged with aiding and abetting, the State
failed to present evidence that Dowty acted with another individual in committing
the burglaries at the Ferguson and WoodwardlWest homes. Thus, Dowty asserted
he could not be convicted of aiding and abetting. The trial court denied his
motion. Ultimately, Dowty was convicted on 9 of the 13 felony counts, and he
subsequently admitted to being a habitual offender. The trial court sentenced
Dowty to a total of 45 years in the South Dakota State Penitentiary.
State v. Dowty, 838 N.W.2d 820, 822-25 (S.D. 2013) (footnotes and internal numbering
omitted). Dowty argued on appeal to the Supreme Court of South Dakota that the trial court
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erred in denying his motion for judgment of acq\littal on all charges related to the Ferguson and
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WoodwardlWest burglaries and~rred in denyihg hi~ motion to sever the charges. Id. at 825.
Dowty sent a letter to a South Dakota state court in which he requested appointment of an
attorney "for writ of habeas corpus under rule 6, and 18 U.S.C. 3006A," Doc. 14-8, but he has
not filed for state habeas or other post-conviction relief, Doc. 1 at 3.
Dowty petitioned for writ of habeas corpus pursuant to 28 U.S.C. § 2254 requesting this
Court vacate the state court conviction and grant a new trial. Doc. 1. This Court screened
Dowty's petition and dismissed the first two of the four grounds for relief as plainly having no
merit. Doc. 10 at 2.
The Attorney General for the State of South Dakota responded to the
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remaining two grounds in Dowty's petition by filing a motion to dismiss, arguing Dowty failed
to exhaust state court procedures. Doc. 12. Dowty, acting pro se, filed several supplemental
documents putting forth various arguments, some of which are pertinent to the remaining
grounds and many of which are not. Docs. 15, 17, 18, 20, 22, 23, 24,25.
II.
ANAL YSIS
A. Dowty's Claims
Dowty's § 2254 petition has two remaining grounds. First, I Dowty claims that the DNA
evidence and testimony of the victim and Dowty's co-defendant were insufficient to support his
conviction for the burglary and attempted murder at the Williams residence.
Doc. 1 at 6.
Second,2 Dowty claims that the evidence is insufficient to convict him for the burglaries at the
WoodwardfWest and Ferguson residences. Doc. 1 at 6. Dowty's arguments in support of the
remaining grounds are, in sum: (1) the state was required to prove that a principal other than
Dowty participated in the WoodwardfWest burglaries because Dowty was charged solely as an
aidor and abettor and failed to do so, and (2) Michael Williams's identification of Dowty as one
of the burglars in his home was insufficient to support his conviction. Doc. 17 at 1-2.
A federal district court may entertain an application for the writ of habeas corpus on
behalf of a person in custody pursuant to a state court judgment who believes that his or her
confinement is in violation of "the Constitution or laws or treaties of the United States." 28
U.S.C. § 2254(a). Though currently in federal custody, Dowty challenges the validity of his state
sentences. Dowty's confinement satisfies the "custody" requirement of § 2254 because he will
remain in custody following his eventual release from federal custody.
See Walker v.
Wainwright, 390 U.S. 335, 337 (1968) (per curiam) (holding a prisoner may seek habeas relief
I The first remaining ground was ground three in Oowty's petition for habeas relief.
2 The second remaining ground was ground four in Dowty's petition for habeas relief.
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even if, though detennined in his favor, the prisoner would not be subject to immediate release);
cf. Jackson v. United States, 423 F.2d 1146, 1149 t8th,Cir. 1970) (holding a state prisoner could
challenge the validity of federal confinement that he would not serve until the completion of his
state sentence). Moreover, Dowty is serving a portion of his state sentence concurrently with his
federal sentence.
B. Sufficiency of Evidence for the Williams Burglary
Dowty asserts that there was insufficient evidence to convict him for the November 24,
2010 burglary of the Williams residence in his first remaining ground for relief. Specifically,
Dowty argues that the DNA evidence and the eye witness testimony was insufficient to place
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him at the scene of the crime. Doc. 1 at 6. A defendant has a fundamental right to be convicted
only by evidence that is sufficient to convince a reasonable fact finder of his or her guilt beyond
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a reasonable doubt. In re Winship, 397 U.S. 358,3'68'(1970). Therefore, Dowty states a claim
that, if true, may be a ground for habeas relief under § 2254.
However, Dowty has not exhausted his state procedural remedies. Section 2254 bars
"granting of habeas corpus relief 'unless it appears that the applicant has exhausted the remedies
available in the courts of the State. '" Gray v. Netherland, 518 U.S. 152, 161 (1996); 28 U. S.c.
§ 2254(b)(1). While a petitioner is not required to show that there is no possible state procedure
that could grant relief, he or she must give the state court a "fair opportunity" to provide relief.
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This requirement promotes comity between
state and federal courts and properly gives a state court the first opportunity to correct any
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constitutional violations that may have occurred in a case within its jurisdiction. Rhines v.
Weber, 544 U.S. 269,273-74 (2005). Dowty dId
n~~ challenge the sufficiency of the evidence
against him for the Williams burglary when he appealed his conviction to the South Dakota
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Supreme Court, see Dowty, 838 N.W.3d 820. Nor has he made such a claim in a petition for
state habeas or post-conviction relief.
The state courts have not had a fair opportunity to
determine whether there was constitutional error that must be corrected. Therefore, Dowty's
insufficiency-of-the-evidence claim with respect to the Williams burglary has not been exhausted
and must be dismissed by this Court at this time.
C. Sufficiency of the Evidence for the Ferguson and WoodwardlWest Burglaries
In Dowty's final ground for relief, he claims "insufficient invalid evidence" was used to
convict him of the Ferguson and WoodwardlWest burglaries. Doc. 1 at 6. In various filings,
Dowty has characterized this evidence as "fictitious and imaginary," id., and "only
circumstantial evidence of the weakest kind," Doc. 22 at 1. Dowty claims that he "was charged
only as an aider and abettor," Doc. 22 at 2, and "the State presented no evidence, that a principal
participated in or committed the offenses," Doc. 17 at 1. Thus, Dowty argues, the evidence
supporting his convictions for those offenses was insufficient as a matter of law. Doc. 17 at 1;
Doc. 22 at 2.
Only a confinement that is alleged to be a violation of the United States Constitution or
federal law may be challenged through § 2254. 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S.
19, 21 (1975) (per curiam). A defendant has a fundamental right to be convicted only by
evidence that is sufficient to convince a reasonable fact finder of his or her guilt beyond a
reasonable doubt. Winship, 397 U.S. at 368. On a valid claim for relief based upon a violation
of due process due to insufficiency of the evidence under 28 U.S.C. § 2254, a petitioner is
entitled to relief only if no reasonable trier of fact could have found each of the necessary
elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1976).
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With respect to Dowty's aiding and abetting argument, he does not raise an issue of
constitutional or federal law.
Dowty made the same argument in his direct appeal of the
convictions to the Supreme Court of South Dakota. See Dowty, 838 N.W.2d at 825-26. That
court rejected Dowty's claim noting that state law had abolished the distinction between a
principal and an accomplice. Id. at 826 (citing SDCL 22-3-3.1). Thus, the court reasoned, if
there is no legal distinction between an accomplice and a principal, it does not matter whether he
was charged as an aider and abettor or whether he was charged as a principal.
Id.
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arguments and decision for this claim on direct appeal turned on interpretation of state law, and
Dowty had a fun and fair opportunity to present his arguments on the issue. Dowty presented the
same theory in his § 2254 petition.
Section 2254 only allows deciding whether "'the
Constitution or laws or treaties of the United States' have been violated." Closs v. Weber, 238
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F.3d 1018, 1023 (8th Cir. 2001) (quoting 28 U.S.C. § 2254). Claims of error based on state law·
grounds for relief are not cognizable in federal habeas corpus proceedings. Id.
Dowty also raises a new theory regarding generally the sufficiency of evidence to
convict. This claim has not been exhausted at the state court level. Before a federal court can
grant habeas relief pursuant to § 2254, a petitioner must ordinarily give the state court a "fair
opportunity" to correct an alleged constitutional error. O'Sullivan, 526 U.S. at 842; Gray, 518
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U.S. at 161; 28 U.S.C. § 2254(b). To give the state court a fair opportunity to address the claim,
a petitioner must present the same facts and legal theories to the state court as he does the federal
court. Jones v. Jerri son, 20 F.3d 849, 854 (8th Cir. 1994). In his direct appeal, Dowty only
presented the theory that he could not be convicted as a principal to a crime when he was
indicted as an aidor and abettor. Doc. 14-5 at 12-19. Dowty did not argue generally that the
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evidence was insufficient to support his conviction, and he did not file a state claim for postconviction relief. Therefore, this ground for relief is barred for failure to exhaust state remedies.
III.
CONCLUSION
The remaining grounds for relief in Dowty's § 2254 petition have not been exhausted or
have been decided on independent and adequate state grounds, so they may not be reviewed by
this Court. Therefore, it is hereby
ORDERED that Dowty'S Petition for Writ of Habeas Corpus by a Person in State
Custody pursuant to § 2254 is denied. It is further
ORDERED that judgment of dismissal without prejudice of this case hereby enters. It is
finally
ORDERED that no certificate of appealability enters.
DATED this ~,,$t day of January, 2015.
BY THE COURT:
Q&.a~
R013ERTO A. LANGE
UNITED STATES DISTRICT JUDGE
9~
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