Tripp v. Dooley et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis, directing service and ordering the parties to show cause no later than May 31, 2019, why the petition should not be dismissed. Signed by US Magistrate Judge Veronica L. Duffy on 4/22/2019. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN CHRISTOPHER MICHEAL
TRIPP,

4:18-CV-04079-LLP

Petitioner,
ORDER FOR SERVICE
AND TO SHOW CAUSE

vs.
WARDEN BOB DOOLEY; WARDEN
DAREN YOUNG; SOUTH DAKOTA
ATTORNEY GENERAL,
Respondents.

Petitioner, Kevin Christopher Micheal Tripp, an inmate at the South
Dakota State Penitentiary in Sioux Falls, South Dakota, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Docket No. 1. It
appears from the petition that Mr. Tripp has three prior state court convictions:
a 2012 sexual contact with a child conviction, a 2018 aggravated assault
conviction, and a 2018 sliming conviction.
There are a number of procedural rules that apply to an application for
habeas relief by a state prisoner under § 2254. Chief among them is the
doctrine of state court exhaustion, which limits federal habeas review of state
court convictions as follows:.
(b)(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the
courts of the state; or
(B)
(i) there is an absence of available State corrective

process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
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(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning of
this section, if he has the right under the law of the State to raise,
by any available procedure, the question presented.
See 28 U.S.C. § 2254(b) and (c). The above codifies what was previously a
judicial doctrine of exhaustion.
A federal court may not consider a claim for relief in a habeas corpus
petition if the petitioner has not exhausted his state remedies. See 28 U.S.C.
§ 2254(b). “[T]he state prisoner must give the state courts an opportunity to
act on his claims before he presents those claims to a federal court in a habeas
petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). If a ground for
relief in the petitioner’s claim makes factual or legal arguments that were not
present in the petitioner’s state claim, then the ground is not exhausted.
Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir. 1991). The exhaustion
doctrine protects the state courts’ role in enforcing federal law and prevents the
disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518
(1982). The Supreme Court has stated:
Because “it would be unseemly in our dual system of government
for a federal district court to upset a state court conviction without
an opportunity to the state courts to correct a constitutional
violation,” federal courts apply the doctrine of comity, which
“teaches that one court should defer action on causes properly
within its jurisdiction until the courts of another sovereignty with
concurrent powers, and already cognizant of the litigation, have
had an opportunity to pass upon the matter.”

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Rose, 455 U.S. at 518 (citation omitted). The exhaustion rule requires state
prisoners to seek complete relief on all claims in state court prior to filing a writ
of habeas corpus in federal court. Federal courts should, therefore, dismiss a
petition for a writ of habeas corpus that contains claims that the petitioner did
not exhaust at the state level. See 28 U.S.C. ' 2254; Rose, 455 U.S. at 522.
The exhaustion requirement is waived “only in rare cases where exceptional
circumstances of peculiar urgency are shown to exist.” Mellott v. Purkett, 63
F.3d 781, 784 (8th Cir. 1995).
A federal court must determine whether the petitioner fairly presented an
issue to the state courts in a federal constitutional context. Satter v. Leapley,
977 F.2d 1259, 1262 (8th Cir. 1992). “To satisfy exhaustion requirements, a
habeas petitioner who has, on direct appeal, raised a claim that is decided on
its merits need not raise it again in a state post-conviction proceeding.” Id.
“[S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan, 526 U.S. at 845. “A claim is considered
exhausted when the petitioner has afforded the highest state court a fair
opportunity to rule on the factual and theoretical substance of his claim.”
Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993).
This federal court has reason to believe the claims Mr. Tripp presents in
his pleadings herein may not have been exhausted in state court. Accordingly,
based upon the record,

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IT IS ORDERED
(1)

the motion to proceed in forma pauperis (Docket 2) is granted.
Mr. Tripp shall pay the $5.00 filing fee to the clerk of court by May
31, 2019.

(2)

that the Clerk of Court is directed to serve upon the respondent
and the Attorney General of the State of South Dakota a copy of
the petition and this order;

(3)

that respondent will file and serve a response to the petition within
thirty (30) days after receipt of this order. Respondent shall also
file the complete state court records in Mr. Tripp’s state court
cases, as well as any and all state habeas cases.

IT IS FURTHER ORDERED
That both respondent and Mr. Tripp shall show cause no later than May
31, 2019, why Mr. Tripp’s petition should not be dismissed without prejudice
for failure to present his claims to the state courts first and to exhaust his
remedies before the circuit and supreme courts of the state of South Dakota.
Mr. Tripp is notified that failure to respond to the above order to
show cause may result in dismissal of his petition in this court.
DATED this 22nd day of April, 2019.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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