Kryger v. Sullivan et al

Filing 15

ORDER granting 11 Motion for Judgment on the Pleadings; adopting 13 Report and Recommendation; overruling 14 Objection to Report and Recommendation.. Signed by U.S. District Judge Lawrence L. Piersol on 1/17/23. Mailed to petitioner (SLW)

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Case 4:22-cv-04086-LLP Document 15 Filed 01/17/23 Page 1 of 2 PageID #: 781 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION * CHRISTOPHER DEAN KRYGER, * CIV 22-4086 * Petitioner, * * vs. * ORDER WARDEN DAN SULLIVAN and THE ATTORNEY GENERAL OF THE * STATE OF SOUTH DAKOTA, * * Respondents. * * Mr. Kjyger timely filed his habeas petition on June 29, 2022. The Respondents filed a Motion for Judgment on the Pleadings on August 29, 2022. Mr. Kryger did not file a timely response. The Report and Recommendation was filed on November 16,2022, with objections due within fourteen(14)days ofservice ofthe Report and Recommendation. On December 12, 2022, Mr. Kryger filed his Objections to the Report and Recommendation. The Objections claim a denial ofthe right ofconfrontation,as Petitioner claims "ifI had been able to question Brian Johnson in my trial I could have created reasonable doubt because I was charged with the crime ofBurglary because it as alleged I stole $1400 out ofKarl's freezer and with that money I bought a ring, but it was discussed by my attorney that Kari had deposited it into his bank account, when he was confronted in court he admitted taking the money,yet I was still charged and found guilty of, now if I had been able to cross-examine him and expose him for what he had done,I believe it would have created reasonable doubt as to what else is he capable of doing? such as cleaning up a crime scene, etc." Brian Johnson was Kari,the decedent's brother. He initially thought $1400.00 was missing from Karl's refrigerator when in fact Kari had deposited it in Brian Johnson's bank account. But Petitioner was not charged with nor convicted oftaking the $1400.00. There was evidence that after the murder Petitioner bought a ring, a cell phone, and a calling plan at Walmart, and all three items cost a total of $171.00. Case 4:22-cv-04086-LLP Document 15 Filed 01/17/23 Page 2 of 2 PageID #: 782 Petitioner was convicted offive counts ofFirst Degree Murder,one count ofSecond Degree Murder, one count of Second Degree Rape and two counts of First Degree Burglary. Since not charged, the $1400 question was really a red herring that defense counsel could have pursued but apparently as a matter ofappropriate trial tactics, did not as defense counsel knew and Brian Johnson has come to learn that the $1400 had been deposited into his account by his sister. It does not appear that there was any impeachment to be had on this collateral point that was not even an issue. To question on this point or not was within the discretion of defense counsel. No confrontation opportunity was missed nor was the confrontation clause violated. This Court's final observation, as shown in more detail in the exhaustive Report and Recommendation, is that the evidence against Petitioner was overwhelming. There was no federal constitutional error in any aspect of this case. Accordingly, IT IS ORDERED: 1. That Petitioner's Objections, Doc. 14, are overruled. 2. That the Report and Recommendation, Doc. 13, is ADOPTED. 3. That Respondents' Motion for Judgment on the Pleadings, Doc. II, is GRANTED. 4. That Petitioner's Application for Writ of Habeas Corpus, Doc. 1, is DISMISSED with prejudice. 5. That no certificate of appealability shall issue. Dated this 'day of January, 2023. BY THE COURT: K^MXiUjL ^wrence L. Piersol United States District Judge ATTEST: lATTHEW W.TH^N,CLERK

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