Decory v. Glass et al

Filing 4

ORDER dismissing plaintiff's 28 U.S.C. § 2254 claim and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 5/15/15. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5014-JLV

WILLIAM DECORY,
Plaintiff,

ORDER

vs.
R.C.P.D. Officer Glass, individual
capacity; PUBLIC DEFENDER
CONNER DUFFY, individual capacity;
and CAPT. BROOKE HAGA, Pennington
County Jail,
Defendants.
INTRODUCTION

On March 4, 2015, plaintiff William Decory, appearing pro se, filed a
complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 2254 claiming various
violations of his constitutional rights. (Docket 1). Mr. Decory also filed a
motion for leave to proceed in forma pauperis. (Docket 2). Mr. Decory did not
mark on the prisoner civil rights complaint form any of the listed jurisdictional
bases for his complaint. (Docket 1). Mr. Decory asserts a jurisdictional basis
for his complaint under “Decory v. Glass.” Id. The court interprets Mr.
Decory’s first claim as an ineffective assistance of counsel claim against his
former attorney, Connor Duffy,1 brought under

28 U.S.C. § 2254. Id. at 3.

The court interprets Mr. Decory’s second claim against Rapid City Police Officer
Glass as brought under 42 U.S.C. § 1983. Id. at 4. The court interprets Mr.
1The

court is aware that Connor Duffy is an attorney at the Pennington
County Public Defender’s Office.

Decory’s third claim against Captain Brooke Haga as brought under 42 U.S.C.
§ 1983. Id. at 5. The court analyzes Mr. Decory’s § 2254 claim and § 1983
claims separately.
DISCUSSION
1.

Mr. Decory’s 28 U.S.C. § 2254 Claim
Mr. Decory’s § 2254 petition must be dismissed.2 Federal review of Mr.

Decory’s claim is premature because Mr. Decory failed to demonstrate that his
state remedies have been exhausted or exceptional circumstances exist which
warrant a waiver of the exhaustion requirement. See Carmichael v. White,
163 F.3d 1044, 1045 (8th Cir. 1998); see also 28 U.S.C. § 2254(b)(1)(A).
South Dakota law provides Mr. Decory with an avenue for habeas corpus
relief. See SDCL Chapter 21. South Dakota prisoners file their petitions first
in the circuit court where their conviction occurred. SDCL § 21-27-14.1. The
South Dakota Supreme Court reviews final state habeas judgments or orders
upon the issuance of a certificate of probable cause by the circuit court. See
SDCL § 21-27-18.1. If no certificate of probable cause is issued by the circuit
court, the prisoner may file a separate motion with the South Dakota Supreme
Court requesting the certificate directly from the Supreme Court. Id.
“As a general rule, a petitioner seeking a writ of habeas corpus under
§ 2254 must first exhaust his available state remedies.” Sund v. Young, No.
2Mr.

Decory’s ineffective assistance of counsel claim against Mr. Duffy is
premised on Mr. Duffy allegedly pressuring Mr. Decory into a plea agreement
rather than going to trial. See Docket 1 at p. 3. Mr. Decory seeks to withdraw
his plea. Id.
2

CIV. 14-4052-KES, 2014 WL 2506194, at *2 (D.S.D. June 3, 2014) (citing
28 U.S.C. § 2254(b)(1)(A)). “In other words, the 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). “Comity thus dictates that when a prisoner alleges that his
continued confinement for a state court conviction violates federal law, the state
courts should have the first opportunity to review this claim and provide any
necessary relief.” Id. at 844 (citing Rose v. Lundy, 455 U.S. 509, 515-16 (1982)
(further citations omitted); see also Mellott v. Purkett, 63 F.3d 781, 784 (8th Cir.
1995). “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)
(citing Picard v. Connor, 404 U.S. 270, 275-78 (1971).
“ ‘The purpose of exhaustion is not to create a procedural hurdle on the
path to federal habeas court, but to channel claims into an appropriate forum,
where meritorious claims may be vindicated and unfounded litigation obviated
before resort to federal court.’ ” Mellott, 63 F.3d at 784 (quoting Keeney v.
Tamayo-Reyes, 504 U.S. 1, 10 (1992)). “A strong presumption exists [in favor of
exhaustion] and the exhaustion requirement is waived ‘only in rare cases where
exceptional circumstances of peculiar urgency are shown to exist.’ ” Sund,
2014 WL 2506194, at *2 (quoting Mellott, 63 F.3d at 785). In Mellott, the United
States Court of Appeals for the Eighth Circuit found the prisoner’s assertion of a
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seventeen-month delay in state court was not a circumstance which warranted a
waiver of the exhaustion requirement. Mellott, 63 F.3d at 785.
Mr. Decory bears the burden to show all available state remedies have
been exhausted or that exceptional circumstances exist which warrant waiver of
the exhaustion requirement. Carmichael, 163 F.3d at 1045. Mr. Decory failed
to satisfy this burden. Mr. Decory propounded no evidence demonstrating his
state remedies have been exhausted or even pursued. Based on Mr. Decory’s
complaint, the only document submitted for the court’s review, the court is
without a basis to ascertain the offense to which Mr. Decory pled guilty. Mr.
Decory also failed to adduce any evidence that exceptional circumstances apply
to his case which would warrant a waiver of the exhaustion requirement. Mr.
Decory’s federal habeas claim is premature and dismissal without prejudice is
appropriate. Id.
The court takes this opportunity to advise Mr. Decory of the one-year
limitation period which applies to § 2254 habeas corpus applications.
(d) (1)

A 1-year period of limitation shall apply to an application for
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run
from the latest of
(A)

the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
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(C)

(D)

(2)

the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
the date on which the factual predicate of the claim or
claims presented could have been discovered through
the exercise of due diligence.

The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(l) and (2).
2.

Section 42 U.S.C. § 1983 Claims
With respect to Mr. Decory’s § 1983 claims, the Prison Litigation Reform

Act, 28 U.S.C. § 1915, governs proceedings filed in forma pauperis. Under
§ 1915, a prisoner filing a civil suit “shall submit a certified copy of the trust fund
account statement (or institutional equivalent) for the prisoner for the 6-month
period immediately preceding the filing of the complaint . . . obtained from the
appropriate official of each prison at which the prisoner is or was confined.”
28 U.S.C. § 1915(a)(2). On March 5, 2015, the Clerk of Court advised Mr.
Decory that the court did not receive a prisoner trust account report along with
his motion for leave to proceed in forma pauperis. (Docket 3). The Clerk of
Court further advised Mr. Decory he must complete and return a prisoner trust
account report. Id. To date, Mr. Decory has not paid the filing fee or submitted
a properly completed prisoner trust account report.

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ORDER
In accord with the above discussion and upon review of the record in this
case, it is
ORDERED that Mr. Decory’s 28 U.S.C. § 2254 claim (Docket 1 at p. 3) is
dismissed without prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and
Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the court declines to issue a certificate of appealability.
“When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis
added) (establishing a two-prong standard). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case,
a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further. In this circumstance, no appeal would be warranted.” Id. The
court does not believe reasonable jurists would find the court’s ruling

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debatable or wrong. A certificate of appealability shall not issue in light of the
second prong of the Slack standard.
Although the court declines to issue a certificate of appealability,
Mr. Decory may timely seek a certificate of appealability from the United States
Court of Appeals for the Eighth Circuit under Fed. R. App. P. 22. See
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts and Fed. R. App. P. 22.
IT IS FURTHER ORDERED that on or before May 29, 2015, Mr. Decory
shall file a completed prisoner trust account report signed by an authorized
officer of the Pennington County jail. Failure by Mr. Decory to do so may result
in the denial, without further notice, of his motion for leave to proceed in forma
pauperis.
Dated May 15, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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