Brakeall v. Dooley

Filing 23

ORDER granting 8 Motion to Dismiss; denying as moot 12 Motion for Order; adopting 13 Report and Recommendation; denying 16 Motion to Amend/Correct; denying 19 Motion for Reconsideration ; denying 22 Objection to Report and Recommendation. A Certificate of Appealability shall not issue. Signed by U.S. District Judge Lawrence L. Piersol on 7/18/18. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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WINSTON GREY BRAKEALL,
a/k/a Winston G. Brakeall,

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CIV 17-4112

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Petitioner,
vs.

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ORDER

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ROBERT DOOLEY,Chief Warden,
Mike Durfee State Prison,

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Respondent.

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Petitioner Winston Grey Brakeall, an mmate at the Mike Durfee State Prison,has applied for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge issued a Report and
Recommendation recommending that the Petition be dismissed with prejudice due to procedural
default. Petitioner filed objections to the Report and Recommendation.

In the Report and Recommendation,Magistrate Judge Duffy also recommended Petitioner's
Motion for Order, for computer access and printing. Doc. 12, be denied as moot. Petitioner then
filed a Motion for Reconsideration,Doc. 19,requesting the Court to reconsider the recommendation
regarding computer access and the number of pages inmates are allowed to print. That claim is moot
as to this case as this case is being dismissed with prejudice. The limitation of access claimed does
not in this case establish cause as a basis to avoid procedural default.

The Court has conducted a de novo review of Petitioner's case before this Court, including
Petitioner's Objections to the Report and Recommendation, and adopts the Report and

Recommendation. Petitioner did not appeal pursuant to SDCL1-26,the only method of appealfrom
the decision ofthe South Dakota Board ofPardons and Paroles revoking his parole for failing some
i

but passing other polygraph tests which asked incriminating questions which if answered one way

could lead to a felony conviction. Petitioner in other instances refused to answer mandatory
questions on the basis of possible self-incrimination. Petitioner has a non-frivolous constitutional

claim on the basis of the persuasive but non-binding decision of the Tenth Circuit Court of Appeals
in United States v. VanBehren, 822 F.3d 1139 (10th Cir. 2016) (government's threat to seek

revocation of supervised release if defendant refused to answer mandatory questions in a polygraph
constituted unconstitutional compulsion under the Fifth Amendment). The Tenth Circuit and other
circuits have upheld polygraph testing as a special condition of supervised release. See, e.g. United
States V. Johnson,446 F.3d 272,277(2d Cir. 2006); United States v. Dotson,324 F.3d 256,261(4th
Cir. 2003); United States v. Zinn, 321 F.3d 1084, 1090(11th Cir. 2003); United States v. Lee, 315

F.3d 206, 217(3rd Cir. 2003). When punishment is not the result of candor, there can be benefits

to the defendant and the public in terms of effective supervision, deterrence and other treatment.

Schlup V. Delo,513 U.S. 298,115 S.Ct. 851(1995)sets the standard for determining acmal

innocence to avoid a procedural bar to consideration of merits of constitutional claims. The
requirement is that a procedurally defaulted petitioner show that a constitutional violation has
probably resulted in the conviction ofone who is actually innocent. The petitioner mustsubmit new,
reliable evidence to support the claim of acmal irmocence. Amrine v. Bowersox,238 F.3d 1023(8th
Cir. 2001) applied in Kidd v. Norman, 651 F.3d 947 (8th Cir. 2011). Kidd is criticized in 50
Creighton L. Rev. 367(2017): "Does Acmal Innocence Acmally Matter? Why the Schlup Actual
Innocence Gateway Requires Newly Presented, Reliable Evidence." Schlup is a gateway designed
to prevent a fundamental miscarriage of justice where a defendant can meet the evidentiary
requirement for showing actual innocence. The present case presents a colorable claim of a
constitutional violation, but the nature of the case does not provide for a showing of new credible

evidence of acmal innocence. If the present case were to allow an exception to procedural default,
another gateway to avoid procedural bar to the consideration of constitutional claims would have to
be recognized. The courts have not recognized such an additional gateway and Congress has not
created one.

Accordingly,

rr IS ORDERED:

1.

ThatPetitioner's Objections(Doc.22)are denied,and the Magistrate Judge's
Report and Recommendation(Doc. 13) is adopted.

2.

That Respondents' Motion to Dismiss Petitioner's Application for Writ of
Habeas Corpus(Doc. 8)is granted.

3.

That Petitioner's Motion for Order, for computer access and printing (Doc.
12)is denied as moot.

4.

That the Petitioner's Motion for Reconsideration(Doc. 19)is denied.

5.

That Petitioner's Motion to Amend/Correct Petition for Writ of Habeas

Corpus(Doc. 16)is denied.

6.

ThatPetitioner's Application for Writ ofHabeas Corpus(Doc. 1)is dismissed
with prejudice.

7.

That a Certificate of Appealability shall not issue.

Dated this

day of July, 2018.
BY THE COURT:

iwrence L. Piersol

United States District Judge
ATTEST;
MATTHEW W.

BY:

;len,clerk