Sund v. Young et al

Filing 9

ORDER denying as moot 4 Motion to Appoint Counsel ; adopting 8 Report and Recommendation and denying petition. Signed by U.S. District Judge Karen E. Schreier on 6/3/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DENNIS R. SUND,
Petitioner,
vs.
DARIN YOUNG, Warden, South
Dakota State Penitentiary, and
MARTY J. JACKLEY, Attorney
General, State of South Dakota,
Respondents.

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Civ. 14-4052-KES

ORDER ADOPTING
REPORT AND
RECOMMENDATION

Petitioner, Dennis Ray Sund, filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The court referred Sund’s petition to
Magistrate Judge John Simko pursuant to 28 U.S.C. § 636(b) and Rule 8 of
the Rules Governing Section 2254 Cases in United States District Courts.
On May 1, 2014, Magistrate Judge John Simko submitted his report
and recommended that Sund’s petition be dismissed because the face of
petitioner’s application indicated he had not pursued a state habeas action
and therefore, his available state habeas remedies were not exhausted
pursuant to the requirements of 28 U.S.C. §2254(b)(1)(A). Objections to the
report and recommendation were due by May 19, 2014.
The time for objections has passed. No objections to the Report and
Recommendation have been filed pursuant to 28 U.S.C. § 2254, Rule 8(b)(3).

The court has considered the case de novo and accepts the Report and
Recommendation in full. Therefore, it is
ORDERED that Magistrate Judge Simko’s report and recommendation
(Docket 8) is adopted in full. Petitioner’s pro se petition for habeas corpus is
denied without prejudice.
IT IS FURTHER ORDERED that petitioner’s motion to appoint counsel
(Docket 4) is denied as moot.
IT IS FURTHER ORDERED that based upon the reasons set forth herein
and pursuant to Fed. R. App. P. 22(b), the court finds that petitioner has not
made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). Therefore, a certificate of appealability is denied.
Dated June 3, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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