Sund v. Young et al
ORDER denying as moot 2 Motion to Appoint Counsel ; granting 6 Motion to Dismiss; denying as moot 12 Motion for Discovery; denying as moot 13 Motion for Discovery; denying as moot 14 Motion for Discovery; adopting 17 Report and Recommendation; overruling 18 Objection to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 7/13/2015. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
DENNIS RAY SUND,
DARIN YOUNG, Warden, South Dakota
ED LIGTENBERG, Executive Director,
Board of Pardons and Paroles, and
MARTY J. JACKLEY, Attorney General of
the State of South Dakota,
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
Petitioner, Dennis Ray Sund, filed a pro se petition for writ of habeas corpus
under 28 U.S.C. ' 2254 asserting claims for ineffective assistance of counsel, among
others. The petition was assigned to United States Magistrate Judge Veronica L.
Duffy pursuant to 28 U.S.C. ' 636(b)(1)(B) for the purpose of conducting any
necessary hearings, including evidentiary hearings. On February 4, 2015,
Magistrate Judge Duffy submitted her Report and Recommendation for disposition
of this case to the court. Petitioner filed his objection to the report and
recommendation on February 20, 2015. Respondents have not objected to the
report. For the following reasons, the court adopts Magistrate Judge Duffy’s report
as modified by this opinion.
On November 17, 2002, Sund was arrested for driving under the influence in
Spink County, South Dakota. See Supreme Ct. File 26702 at 12, 17. Sund was
released on bond on November 22, 2002, with conditions to appear at all hearings
and to keep in contact with his attorney. See id. at 17 (affidavit of Spink County
State’s Attorney). Sund then failed to make his court appearances and did not keep
in contact with his attorney. See id. On February 11, 2003, Spink County Judge
Larry Lovrien issued a bench warrant for Sund’s arrest pertaining to his DUI charge.
Id. at 19. On February 26, 2003, the Spink County Court issued a warrant for
Sund’s arrest for failure to appear after release. Supreme Ct. File 26703 at 2. Sund
was located and arrested in February 2013.
On April 24, 2013, Sund pleaded guilty to felony charges of driving under the
influence (fourth offense) and failure to appear. He was sentenced to five years in
prison on the DUI with two years suspended and two years in prison on the felony
failure to appear. Both sentences were to be served concurrently. Sund filed an
appeal to the South Dakota Supreme Court on August 22, 2013. On January 21,
2014, the South Dakota Supreme Court affirmed his conviction. No petition for
certiorari was filed with the United States Supreme Court.
Sund then filed a notice of appeal with this court on April 7, 2014. See
4:14-cv-04052-KES (Docket 1). This court construed the notice of appeal to be a
petition for writ of habeas corpus. 4:14-cv-04052-KES (Docket 5). The matter was
referred to Magistrate Judge John Simko, who reviewed the petition and
recommended dismissal because Sund failed to exhaust his state remedies. No
objection was filed, and this court adopted the report.
Sund was released from state custody on parole on May 2, 2014. Thereafter,
Sund filed a petition for writ of habeas corpus in state court on June 4, 2014. In his
petition, Sund requested appointment of counsel. The State of South Dakota
responded arguing that Sund had been paroled and therefore was not entitled to a
writ of habeas corpus under South Dakota law. Sund replied that he was in custody
because he was still on “probation [sic].” Additionally, he requested the court to
issue a certificate of probable cause and appoint an attorney to assist him. Petition
for Writ of Habeas Corpus at 2-3, Sund v. Young, CIV 14-49 (Spink County Ct.
June 6, 2014). No counsel was appointed to represent Sund in the state habeas
proceeding. On September 30, 2014, State Circuit Court Judge Scott Myren denied
Sund’s request for a writ of habeas corpus. An order denying Sund’s petition was
filed on October 7, 2014. No notice of entry of this order appears in the state court
record. Sund did not seek a certificate of probable cause from the South Dakota
Supreme Court, and did not appeal the decision.
Sund then filed this pro se petition for writ of habeas corpus in federal court
on October 16, 2014. The petition was referred to Magistrate Judge Duffy, who
recommends denial of the petition.
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); see also United States v. Craft,
30 F.3d 1044, 1045 (8th Cir. 1994).
Magistrate Judge Duffy concluded that all of Sund’s claims were barred from
federal review due to procedural default and that he could not show adequate cause
to overcome the default. Before seeking federal relief under 28 U.S.C. § 2254, a
petitioner must “fairly present” the claim to the state courts. Murphy v. King, 652
F.3d 845, 848 (8th Cir. 2011) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004); 28
U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus . . . shall not be
granted unless it appears that the applicant has exhausted the remedies available in
the courts of the State.”)). As a rule, a federal court “will not review a question of
federal law decided by a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to support the
judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991)). This rule applies to bar
federal habeas petitions “when a state court declined to address a prisoner’s federal
claims because the prisoner had failed to meet a state procedural requirement.” Id.
at 729-30. The requirement that prisoners first exhaust their claims in state court
“protect[s] the state courts’ role in the enforcement of federal law and prevent[s]
disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982).
“[A] habeas petitioner who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an opportunity to
address those claims in the first instance.” Coleman, 501 U.S. 732. “The bar to
federal review may be lifted, however, if the prisoner can demonstrate cause for the
procedural default in state court and actual prejudice as a result of the alleged
violation of federal law.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (quotations
Under the South Dakota state habeas statutory scheme, a prisoner must be
in physical custody for habeas relief to be available. Bostick v. Weber, 692 N.W.2d
517, 519-21 (S.D. 2005); SDCL 21-27-1 (stating that habeas relief is available to
“any person committed or detained, imprisoned or restrained of his liberty, under
any color or pretense whatever . . . .”). Parole does not qualify as physical custody.
Bostick, 692 N.W.2d at 521. State Circuit Judge Myren rejected Sund’s habeas
claims on procedural grounds because the petition was not timely filed prior to when
Sund was paroled. The decision to reject Sund’s petition rests on adequate and
independent state grounds under Bostick. Therefore, procedural default bars federal
review of Sund’s claims unless he can show cause for the default and actual
prejudice as a result. Maples, 132 S. Ct. at 922.
Sund argues that Magistrate Judge Duffy erred by concluding that he has not
demonstrated “cause” for his procedural default. In reaching her conclusion, the
magistrate judge applied the Coleman rule, which holds that, in general, ineffective
assistance of counsel during state collateral proceedings cannot serve as cause to
excuse procedural default. Coleman, 501 U.S. at 754-55; see also Dansby v. Hobbs,
766 F.3d 809, 833 (8th Cir. 2014). Sund, relying on Maples and Martinez v. Ryan,
132 S. Ct. 1309 (2012), contends that he can meet an exception to the general rule
set forth in Coleman. Specifically, Sund contends that he can show cause because
he was abandoned by his attorney at a critical stage of his state proceeding and was
not appointed counsel for his post-conviction proceeding. In Maples, the petitioner
was able to show cause because he was “disarmed by extraordinary circumstances
quite beyond his control.” Maples, 132 S. Ct. at 927. There, the petitioner’s attorneys
abandoned him without notice during his post-conviction proceeding, thus
occasioning the default. “Not only was Maples left without any functioning attorney
of record, the very listing of [his attorneys] as his representatives meant that he had
no right personally to receive notice . . . Given no reason to suspect that he lacked
counsel . . . Maples surely was blocked from complying with the State’s procedural
By contrast, the evidence here does not show “extraordinary circumstances
beyond [Sund’s] control” and does not establish that Sund was abandoned by his
attorney. See id. Attorney Gina Rogers represented Sund throughout the
proceedings at the trial court and direct appeal stages. The record shows that she
filed briefs and requests for discovery, and duly communicated with her client. See
Supreme Ct. File 26702, 26703. Her representation ended when Sund’s conviction
was affirmed on appeal, and she notified Sund of such. Docket 1-1, 1-4, Sund v.
Young, 4:14-CV-04052-KES, 2014 WL 2506194 (D.S.D. June 3, 2014) (letter from
Rogers to Sund notifying him of South Dakota Supreme Court decision and stating
that appeal was brought to final conclusion). Therefore, this case is distinguishable
Sund also relies on Martinez in his attempt to show cause. In Martinez, the
petitioner was able to show cause to excuse the default of his ineffective assistance
of trial counsel claim because his first postconviction counsel was likewise
ineffective, thus depriving him of an opportunity to present his claim in his first
collateral proceeding. Martinez, 132 S. Ct. at 1314-15. In her report, Magistrate
Judge Duffy concluded that Martinez did not apply to this case because Sund was
never represented by habeas counsel, and therefore Sund could not show cause to
bring his ineffective assistance claim. Docket 17, n.4.
Martinez, however, does apply in cases where the petitioner is unrepresented
by counsel during an initial-review collateral proceeding. An initial-review collateral
proceeding is defined as the state collateral proceeding that provides the first
occasion to raise a claim of ineffective assistance of trial counsel. Martinez, 132 S.
Ct. at 1315. The Supreme Court created a “narrow exception” in Martinez that
“modif[ies] the unqualified statement in Coleman that an attorney’s ignorance or
inadvertence in a postconviction proceeding does not qualify as cause to excuse a
procedural default.” Id. The Martinez exception allows a federal habeas court to find
“cause” to excuse procedural default of an ineffective assistance claim where “(1) the
claim of ineffective assistance of trial counsel was a ‘substantial’ claim; (2) the
‘cause’ consisted of there being ‘no counsel’ or only ‘ineffective’ counsel during the
state collateral review proceeding; and (3) the state collateral review proceeding was
the ‘initial’ review proceeding with respect to the
‘ineffective-assistance-of-trial-counsel claim.’ ” Dansby, 766 F.3d at 834 (quoting
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)). Thus, the second element
contemplates a situation where a petitioner was not represented by counsel at his
initial collateral review proceeding.
Sund has satisfied the second and third Dansby elements. First, ineffective
assistance of counsel claims are generally not considered on direct appeal in South
Dakota. See State v. Hannemann, 823 N.W.2d 357, 360 (S.D. 2012) (“Only in rare
cases will an ineffective-assistance-of-counsel claim be ripe for review on direct
appeal.”); State v. Arabie, 663 N.W.2d 250, 256 (S.D. 2003). Thus, the collateral
review proceeding was the initial review proceeding for the ineffective assistance
claim. Second, Sund lacked counsel during the collateral review proceeding. Under
South Dakota law, a petitioner is only entitled to appointment of counsel if he alleges
grounds for habeas relief that are not frivolous. State v. Reed, 793 N.W.2d 63, 67
(S.D. 2010). Thus, the “cause” consisted of there being no counsel during the
collateral review proceeding. To invoke the Martinez exception, however, Sund must
also show that his underlying ineffective assistance of counsel claim is
“substantial.”1 Martinez, 132 S. Ct. at 1318; Dansby, 766 F.3d at 834.
In Harms v. Cline, 27 F. Supp. 3d 1173, 1186 (D. Kan. 2014) the Kansas
District Court noted that Kansas law only requires the court to appoint counsel if it
finds that the motion presents substantial questions of law or triable issues of fact.
The court concluded that “the trial court did not appoint counsel for Petitioner, so it
“A substantial ineffective-assistance claim is one that has some merit.”
Dansby, 766 F.3d at 834. By contrast, an insubstantial ineffective assistance claim
“does not have any merit or . . . is wholly without factual support, or . . . the attorney
in the initial-review collateral proceeding did not perform below constitutional
standards.” Martinez, 132 S. Ct. at 1319. In considering whether an ineffective
assistance claim is substantial, district courts have evaluated the claim under the
standard set in Strickland v. Washington, 466 U.S. 668, 694 (1984). See, e.g.,
Velarde v. Archuleta, No. 14-CV-02356-CMA, 2015 WL 3827106, at *16 (D. Colo.
June 19, 2015) (finding that petitioner could not show cause under Martinez
exception because ineffective assistance claim was not substantial under Strickland
test); Chandler v. Stephens, No. CIV. A. H-14-3547, 2015 WL 3728441, at *3-*4 (S.D.
Tex. June 15, 2015) (determining that ineffective assistance claim was not
substantial based on Strickland and therefore petitioner could not show cause
under Martinez); Wright v. Hobbs, No. 5:13-CV-201 KGB-JTR, 2015 WL 2374184, at
*5-*6 (E.D. Ark. May 18, 2015) (“For an ineffective-assistance . . . claim to have
‘some merit,’ a prisoner must establish that his attorney’s conduct ‘fell below an
objective standard of reasonableness . . . ’ ” under Strickland); Davis v. Kelley, No.
5:13CV00129-SWW-JTR, 2015 WL 1423866, at *5-*7 (E.D. Ark. Mar. 27, 2015)
(finding that petitioner could not show cause under Martinez because ineffective
assistance claim had no merit under Strickland); Busby v. Stephens, No.
4:09-CV-160-O, 2015 WL 1037460, at *3, *12, *14 (N.D. Tex. Mar. 10, 2015) (finding
that trial counsel’s performance was not deficient under Strickland and therefore
necessarily found that Petitioner’s claims were not substantial.” Id. Out of caution,
however, the Harms court analyzed the petitioner’s claim to determine if it had some
merit. Like Kansas, South Dakota only appoints counsel if the petitioner’s claim is
not frivolous; it follows that Sund was not appointed counsel because his claims
were deemed frivolous. Nevertheless, like the Harms court, this court will examine
the substantiality of Sund’s claim.
claim was not substantial and petitioner could not establish cause under Martinez);
Harms v. Cline, 27 F. Supp. 3d 1173, 1186 (D. Kan. 2014) (examining the merits of
petitioner’s ineffective assistance claim under Strickland and finding that claim was
not substantial, and therefore petitioner could not show cause under Martinez).
For an ineffective assistance of counsel claim to be substantial, Sund must
show that his attorney’s conduct “fell below an objective standard of reasonableness
. . . under prevailing professional norms,” and that the “professionally
unreasonable” conduct of counsel “prejudiced the defense.” Strickland, 466 U.S. at
687-88, 691-92. “[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance[.]” Id. at
689. To show prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. In order to show prejudice in the context of
plea agreements, Sund must demonstrate “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Thomas v. Lockhart, 738 F.2d 304,
307 (8th Cir. 1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 689. Failure “to
establish either Strickland prong is fatal to an ineffective-assistance claim.”
Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011). If the Strickland standard is
not met, Sund’s ineffective assistance claim is without merit and does not satisfy the
first Dansby element. See, e.g., Wright, 2015 WL 2374184, at *6.
The record does not demonstrate that Rogers’ conduct “fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. Rather, the record directly
contradicts Sund’s allegations of ineffective assistance. Sund claims that Rogers
failed to file discovery motions, failed to object to the subpoena of Sund’s former
attorney, failed to file motions to suppress or argue against the admittance of his
destroyed blood sample, and did not obtain his medical records. Docket 1 at 5. The
record shows that Rogers filed a pretrial discovery motion on April 19, 2013
(Supreme Ct. File 26703 at 26-29); filed a motion in limine to preclude testimony
from Sund’s former attorney (Id. at 33); and filed a motion in limine to limit
testimony regarding Sund’s destroyed blood sample. Supreme Ct. File 26702 at
57-59. Rogers’ billing records show that she faxed release forms to obtain medical
records. Supreme Ct. File 26702 at 70. Thus, Sund fails to demonstrate that Rogers’
conduct did not “fall within the wide range of reasonable professional assistance,”
Strickland, 466 U.S. at 689, and his ineffective assistance claim is therefore without
merit. See, e.g., Wright, 2015 WL 2374184, at *6; Davis, 2015 WL 1423866, at *5-*7.
Sund additionally alleges that Rogers failed to adequately represent him in
his direct appeal in front of the South Dakota Supreme Court (Docket 1 at 5), and
that she did not inform him of the South Dakota Supreme Court’s decision until
March 2014. Docket 18 at 1. The Eighth Circuit has declined to extend Martinez to
claims alleging ineffective assistance of counsel on direct appeal. Dansby, 766 F.3d
at 833. Rather, the Coleman rule, that “ineffective assistance of counsel during state
postconviction proceedings cannot serve as cause to excuse procedural default,”
governs in all but the limited circumstances recognized in Martinez. Dansby, 766
F.3d at 833. Thus, even if Sund’s ineffective assistance claim on direct appeal had
some merit, it nevertheless would not fall under Martinez.
Finally, Sund makes no showing that he would have not pleaded guilty but for
Rogers’ conduct. See Hill, 474 U.S. at 59. Sund entered guilty pleas pursuant to a
plea agreement and was sentenced in accordance with that agreement. The Eighth
Circuit has explained that plea agreements are valid “if the record demonstrates that
[the defendant] understood the charges against him, was not dissatisfied with the
services rendered by his attorney, and entered his plea knowingly and voluntarily.”
United States v. Murphy, 572 F.3d 563, 569 (8th Cir. 2009) (citation omitted). Sund
stated at his sentencing hearing that he understood the terms of the plea agreement,
discussed those terms with Rogers, was satisfied with Rogers’ advice and services,
and voluntarily entered into the plea agreement. Hr’g Tr. at 7, Supreme Ct. File
26703 at SEP. Following these exchanges, the court concluded:
I find that Mr. Sund understands his rights; he understands the
nature of the charges against him and the maximum penalty for those
offenses; he understands the different pleas that he may enter and the
consequences of those pleas; he’s acting of his own free will; he’s
competent to enter a plea and he’s being represented by competent
Id. at 7-8. Sund’s dissatisfaction with his attorney is, in the face of the record, not
credible. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (explaining “contentions that
in the face of the record are wholly incredible” are entitled to summary dismissal);
see also Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003); United States v.
Journey, 474 F.2d 1003, 1003-04 (8th Cir. 1973). Because Sund cannot
demonstrate that Rogers’ representation fell below the standard required by
Strickland or that he suffered prejudice, he fails to establish each Dansby element.
He therefore cannot show cause under Martinez to excuse his procedural default.
This court has reviewed the magistrate judge’s report and recommendation,
as well as Sund’s objections. This court rejects Sund’s claim for relief as barred by
procedural default. Accordingly, it is
ORDERED that the Report and Recommendation of Magistrate Judge Duffy
(Docket 17) is adopted as amended by this opinion. The court overrules Sund’s
objections (Docket 18).
IT IS FURTHER ORDERED that Sund is granted a certificate of appealability
on the issue of whether he can show cause and prejudice for his procedural default.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (Docket 6) is
IT IS FURTHER ORDERED that Sund’s motion to appoint counsel (Docket 2),
motion for discovery (Docket 12), second motion for discovery (Docket 13), and third
motion for discovery (Docket 14) are denied as moot.
Dated July 13, 2015.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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