Feist v. Dooley

Filing 48

ORDER adopting 46 Report and Recommendation; overruling 47 Objection to Report and Recommendation; granting 16 Motion to Dismiss and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 3/6/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5031-JLV

CHAD MERWIN FEIST,
Petitioner,

ORDER

vs.
BOB DOOLEY, WARDEN,
Respondent.
INTRODUCTION

Petitioner Chad Feist, appearing pro se, filed a motion (Docket 1) pursuant
to 28 U.S.C. § 2254 (“2254 Motion”) to vacate or set aside his criminal conviction
in State v. Chad M. Feist, 9C12000282AO. The respondent filed an answer
opposing the 2254 Motion.1 (Docket 14). Pursuant to a standing order of
October 16, 2014, the matter was referred to United States Magistrate Judge
Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Duffy issued a
report recommending the court deny all of Mr. Feist’s claims in the 2254 Motion.
(Docket 46). Mr. Feist timely filed his objections. (Docket 47). For the
reasons stated below, Mr. Feist’s 2254 motion is denied.
ANALYSIS
The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix,
897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The court may
Respondent acknowledges Mr. Feist’s 2254 Motion was timely filed
pursuant to 28 U.S.C. § 2244(d)(1). (Docket 14 at p. 6).
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“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).
The court reviewed the record in this case de novo and carefully considered
Mr. Feist’s objections to the report and recommendation. (Docket 47). The
court finds Mr. Feist’s objections are without merit.
One of Mr. Feist’s objections is that his trial attorney knew RR, the victim,
which created a conflict of interest in representing Mr. Feist in the state criminal
case. (Docket 47 at p. 7). The court is unable to find any record in the state
habeas file that such a relationship existed. Even if true, this issue was not
raised by Mr. Feist at the state habeas hearing. See state habeas hearing
transcripts, January 15, 2015 and April 30, 2015.2 By failing to raise this issue
in the state habeas proceeding, Mr. Feist procedurally defaulted on the issue.
“If a petitioner has not presented his habeas corpus claim to the state court, the
claim is generally defaulted. . . . [The federal court] will not review a procedurally
defaulted habeas claim because the state has been deprived of an opportunity to
address the claim in the first instance.” Barrett v. Acevedo, 169 F.3d 1155,
1161 (8th Cir. 1999). Mr. Feist’s objection is overruled.
Another of Mr. Feist’s objections to the report and recommendation is that
his trial attorney violated attorney-client confidentiality by permitting the
attorney’s husband to be present during the discussion of the state’s plea offer.
An electronic copy of the state records was received from the Fourth
Judicial Circuit on June 30, 2016. The remaining portion of the order which
discusses the state habeas proceeding refers to those electronic records.
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(Docket 47 at p. 8). This issue was raised during the state habeas hearing. See
state habeas hearing transcript dated January 15, 2015 (“HT” at
pp. 27:13-28:23). The attorney testified she advised Mr. Feist that her husband
was a paralegal and investigator who helped with earlier investigative issues
surrounding the suppression hearing. Id. The attorney testified she explained
that, as her agent, her husband was under the same attorney-client
confidentiality obligation as was she as his attorney. Mr. Feist did not object.
Id. During his testimony at the state habeas hearing, Mr. Feist did not contest
or contradict the attorney’s testimony on this point. Id. at p. 39:1-13.
In the state habeas proceeding, the circuit judge entered a memorandum
opinion on June 15, 2015. Habeas Memorandum Decision, Feist v. Dooley, Civ.
14-90 (4th Cir. Jun. 15, 2015); see also state habeas proceedings (“SHP” at
pp. 162-186). The decision did not specifically address the attorney-client
confidentiality claim, but ruled: “Mr. Feist has raised numerous other issues as
grounds for habeas relief that are found in the pleadings in this action. The
court finds that all other issues are not supported by the record or the law, or are
outside the confines of a habeas corpus case.” (SHP at p. 184).
Magistrate Judge Duffy’s report and recommendation reviewed the issues
raised by Mr. Feist but not specifically addressed in the state habeas order.
(Docket 46 at pp. 16-19). “Here, the state habeas trial court ruled on the merits
of Mr. Feist’s claims, even though some of those claims were not individually
discussed. There is no indication of another reason for dismissal, or state-law

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procedural rule that indicates otherwise.” Id. at p. 46 (references omitted).
With that explanation, the magistrate judge “examine[d] the state circuit court’s
memorandum opinion and review[ed] that decision pursuant to the
[Anti-Terrorism and Effective Death Penalty Act] standard.” Id. at p. 19. Mr.
Feist identifies no constitutional error or prejudice which occurred and his
objection lacks any merit. 28 U.S.C. § 2254(d)(1). Mr. Feist’s objection is
overruled.
Mr. Feist’s remaining objections are repetitive of the arguments made
initially in support of the 2254 Motion and rejected in the report and
recommendation. Compare Dockets 1, 2, 10-12, 17-29, 32-35, 41 and 47.
Each of the grounds for relief alleged in the 2254 Motion was thoroughly
analyzed and rejected by Judge Duffy in the report and recommendation.
The court finds the report and recommendation is an accurate and
thorough recitation of the facts and applicable law. The court further finds
Judge Duffy’s legal analysis is well-reasoned. The court adopts and
incorporates the report and recommendation in full and overrules Mr. Feist’s
objections for the same reasons set forth in the report and recommendation.
ORDER
Having carefully reviewed the record in this case and good cause
appearing, it is
ORDERED that Mr. Feist’s objections (Docket 47) are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
46) is adopted in full.

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IT IS FURTHER ORDERED that the respondent’s motion to dismiss
(Docket 16) is granted.
IT IS FURTHER ORDERED that Mr. Feist’s petition (Docket 1) is
dismissed with 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. A
certificate may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added). A
“substantial showing” under this section is a showing that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In other words, a
“substantial showing” is made if a “court could resolve the issues differently, or
the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Mr. Feist has not made a substantial showing of the denial of a
constitutional right.
Although the court declines to issue a certificate of appealability, Mr.
Feist 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.
Dated March 6, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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