Wilson v. Dooley et al
ORDER granting 8 Motion to Dismiss; adopting in full 15 Report and Recommendation; overruling 16 Objection to Report and Recommendation. A certificate of appealability is denied. Signed by U.S. District Judge Karen E. Schreier on 10/19/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SCOTT LEROY WILSON,
ORDER ADOPTING REPORT AND
CHIEF WARDEN ROBERT DOOLEY,
AND THE ATTORNEY GENERAL OF
THE STATE OF SOUTH DAKOTA,
Petitioner, Scott Leroy Wilson, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. The matter was referred to Magistrate Judge
Veronica L. Duffy for a report and recommendation and she recommended
dismissing the petition. Petitioner then filed an objection to the report and
recommendation. For the following reasons, the court adopts Magistrate Judge
STANDARD OF REVIEW
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. Under 28 U.S.C. § 636(b)(1), the court reviews de novo any
objections to the magistrate judge’s recommendations with respect to
dispositive matters that are timely made and specific. See Fed. R. Civ. P. 72(b).
(“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to”). 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); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Wilson complains that he did not receive a court appointed attorney
while pursuing his habeas petitions in state and federal court. But it has long
been recognized that refusal by the court to appoint counsel to assist a
petitioner in presenting a federal habeas corpus petition does not violate a
petitioner’s constitutional rights. See Hull v. Swenson, 431 F.2d 1194, 1195
(8th Cir. 1970).
Wilson also alleges that he should not be held in prison for failing a
polygraph when he was not convicted of a sex offense. As Magistrate Judge
Duffy recognized in the report and recommendation, this claim was not
exhausted at the state level. Wilson should have pursued an appeal of the
decision of the board of pardons and parole to circuit court under SDCL Ch. 126. Because Wilson failed to properly pursue his administrative appeal, he has
not exhausted his state remedies and he has not shown cause for the
procedural default. As a result, Wilson’s habeas petition is dismissed with
This court has reviewed Magistrate Judge Duffy’s report and
recommendation de novo and Wilson’s objections. This court adopts the report
and recommendation and dismisses Wilson’s petition for relief with prejudice.
Thus, it is ORDERED that the report and recommendation (Docket 15) is
adopted in full. Wilson’s objections to the report and recommendation (Docket
16) are overruled. Defendant’s motion to dismiss (Docket 8) is granted.
Petitioner’s pro se petition for habeas corpus is denied with prejudice.
IT IS FURTHER ORDERED that based upon the reasons stated and
under 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). Thus, a certificate of appealability is denied.
Dated October 19, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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