Brende v. Young et al

Filing 35

ORDER adopting 29 Report and Recommendation; granting 17 Motion to Dismiss; denying as moot 13 Motion to Expedite; denying as moot 20 Motion to Appoint Counsel; denying 27 Motion to Dismiss; denying 28 Motion; denying as moot 30 Motion ; denying as moot 31 Motion to Dismiss; denying as moot 31 Motion to Seal Case; denying as moot 32 Motion ; denying as moot 32 Motion to Dismiss; denying as moot 33 Motion to Dismiss; granting in part Certificate of Appealability. Signed by U.S. District Judge Karen E. Schreier on 1/31/2017. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STEVEN ALLEN BRENDE,

4:16-CV-04084-KES

Petitioner,
vs.

ORDER ADOPTING REPORT
AND RECOMMENDATION,
DISMISSING PETITION, AND
GRANTING CERTIFICATE OF
APPEALABILITY IN PART

DARIN YOUNG, WARDEN; AND
MARTY JACKLEY, ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA;
Respondents.

Petitioner, Steven Allen Brende, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. Docket 1. In his petition, Brende seeks habeas
relief on four grounds. Id. The petition was assigned to United States
Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B), and this
court’s October 16, 2014, standing order. On July 18, 2016, respondents
moved to dismiss Brende’s petition. Docket 17. Respondents argued that
Brende failed to exhaust his claims and failed to state a claim upon which
habeas relief could be granted. Id.
On September 19, 2016, Magistrate Judge Duffy filed a report and
recommendation that recommended dismissal with prejudice of all of Brende’s
habeas claims. Docket 29. In her report and recommendation, Magistrate
Judge Duffy recommends that Grounds I, III, and IV of the petition be
dismissed because Brende failed to raise these grounds before the South

1

Dakota Supreme Court in his appeal from the denial of his state habeas
petition. Id. at 13. Therefore, Magistrate Judge Duffy recommends that these
claims be found procedurally defaulted, and because Brende failed to establish
cause and prejudice to excuse this default, Magistrate Judge Duffy
recommends these claims be dismissed. Id. at 17. Magistrate Judge Duffy
recommends that Ground II of Brende’s petition be dismissed because the
South Dakota Supreme Court’s decision that there was constitutionally
sufficient evidence to sustain Brende’s first-degree rape conviction was not an
unreasonable finding of fact or application of federal law. Id. at 33.
The court’s review of a Magistrate Judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Brende did not file objections to Magistrate Judge Duffy’s report and
recommendation. Although he has filed many motions, none of his filings can
be construed as objections because none of them respond to Magistrate Judge
Duffy’s recommendations as outlined above. After de novo review of the record,
the court adopts the report and recommendation in full and dismisses Brende’s
petition.
2

In his filings, Brende makes numerous requests to appeal the potential
dismissal of his petition. “[A] state prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court's denial of his petition.”
Miller-El v. Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). “Before
an appeal may be entertained, a prisoner who was denied habeas relief in the
district court must first seek and obtain a COA from a circuit justice or judge.”
Id. at 335–36. A certificate may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(2).
A “substantial showing” is one that demonstrates “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court finds that Brende fails to make a substantial showing that his
constitutional rights were denied as to Grounds I, III, and IV because these
claims are procedurally defaulted. Consequently, a certificate of appealability is
not issued as to these claims. But, as outlined in detail by Magistrate Judge
Duffy, reasonable jurists could disagree with the finding that Brende failed to
state a claim that there was insufficient evidence to sustain his first-degree
rape conviction as raised in Ground II. Therefore, a certificate of appealability is
issued as to this claim.
Thus, it is ORDERED
1.

Magistrate Judge Duffy’s report and recommendation (Docket 29)
is adopted in full.

3

2.

Respondents’ motion to dismiss (Docket 17) is granted, and
Brende’s petition is dismissed with prejudice.

3.

Brende’s motion to stop delays (Docket 13) is denied as moot.

4.

Brende’s motion to appoint counsel and for release of trial
transcript (Docket 20) is denied as moot.

5.

Brende’s motion for dismissal burden of proof on insufficiency of
evidence (Docket 27) is denied.

6.

Brende’s motion for challenging state finding with evidence (Docket
28) is denied.

7.

Brende’s motion to make demand of action and evidence be
disclosed or excluded (Docket 30) is denied as moot.

8.

Brende’s motion for dismissal of state report and recommendation
(Docket 31) is denied as moot.

9.

Brende’s motion for transport and dismissal (Docket 32) is denied
as moot.

10.

Brende’s motion for dismissal of the state of South Dakota felony
claim (Docket 33) is denied as moot.

11.

A certificate of appealability is not issued as to Grounds I, III, and
IV.

12.

A certificate of appealability is issued as to the finding that Brende
failed to state a claim that there was insufficient evidence to
sustain his first-degree rape conviction and the dismissal of that

4

claim in Ground II.
Dated January 31, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

5