Merrival, Jr. v. Dooley et al
ORDER denying as moot 3 Motion to Appoint Counsel; denying as moot 6 Motion for Leave to Proceed in forma pauperis; adopting 10 Report and Recommendation; overruling 12 Objection to Report and Recommendation; denying as moot 16 Motion to Appoint Counsel and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 9/12/17. (SB) Modified on 9/12/2017 (SB).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MICHEAL LYNN MERRIVAL, JR.,
ROBERT DOOLEY, WARDEN; AND
MARTY JACKLEY, ATTORNEY
Petitioner Micheal Merrival, Jr., while an inmate at the Pennington County
Jail in Rapid City, South Dakota, filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
(Dockets 1 & 9).
The matter was referred to
United States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B).
On April 17, 2017, Judge Duffy issued a report recommending the court dismiss
Mr. Merrival’s habeas petition without prejudice.
Merrival timely filed his objections.
(Docket 10 at p. 7).
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)(1).
The 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).
objections are overruled and the report and recommendation is adopted in full.
Mr. Merrival’s objections to the report and recommendation are as follows:
Special circumstances of Mr. Merrival’s case waive the
Mr. Merrival’s attempt to exhaust the state remedies was
obstructed by the state court.
Each objection will be separate analyzed.
SPECIAL CIRCUMSTANCES OF MR. MERRIVAL’S CASE
WAIVE THE EXHAUSTION REQUIREMENT.
Mr. Merrival entered guilty pleas to two separate counts of grand theft in
South Dakota state court.
Judgments were filed on January 26, 2016,
indicating Mr. Merrival was sentenced to 10 years’ imprisonment in case number
13-859 and 5 years’ imprisonment in case number 14-3448.
Mr. Merrival filed direct appeals of both convictions.
(Dockets 9-8 and
On January 17,
2017, the South Dakota Supreme Court affirmed both convictions.
at pp. 2-3).
Mr. Merrival did not file a state habeas petition.
Mr. Merrival filed a § 2254 petition on April 10, 2017.
(Docket 9 at p. 2).
Magistrate Judge Duffy found petitioner failed to meet the exhaustion
requirement of § 2254. (Docket 10 at p. 4). Petitioner objects to that
conclusion. (Docket 13).
Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas
review of state court convictions is limited to claims the petitioner previously
presented to the state courts for consideration:
(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;
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant. . . .
(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.
28 U.S.C. § 2254(b) and (c).
“The foundation for the exhaustion rule is that the states retain primary
responsibility under the United States Constitution for the legality of their
exercise of police power.” Hawkins v. Higgins, 898 F.2d 1365, 1367 (8th Cir.
1990). “Accordingly, state courts have the first opportunity and responsibility
to determine whether a particular exercise of police power is constitutional or
“[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). This requires Mr. Merrival to
file a habeas petition with the state circuit court and then also afford the South
Dakota Supreme Court an opportunity to rule on the merits of the circuit court’s
decision by timely seeking review before that court. Id., 526 U.S. at 845; see
also SDCL § 21-27-18.1.
The United States Court of Appeals for the Eighth Circuit “recognize[s] the
futility of requiring a habeas petitioner to exhaust state remedies when the state
court has recently decided the same legal question adversely to the petitioner
under nearly identical facts.” Padavich v. Thalacker, 162 F.3d 521, 522 (8th
Cir. 1998) (citation omitted). “If there is no state remedy, a prisoner may go
directly to federal court for protection of his constitutional rights.” Exhaustion
of State Remedies—The Background—What Exhaustion Requires, 17B Fed.
Prac. & Proc. Juris. § 4264.1 (3d ed).
Petitioner claims special circumstances exist which waive the requirement
of state habeas exhaustion.
(Docket 13 at pp. 4-7).
Those include: a serious
health condition at the time of his guilty plea; the state court judge’s refusal to
permit Mr. Merrival to withdraw his guilty plea; the state court sentenced Mr.
Merrival to the statutory maximum sentence of 10 years without hearing him out
on a due process claim; and the Pennington County Public Defender Office
should not have handled the direct appeal.
Mr. Merrival’s claims do not rise to the level of special circumstances
which warrant waiver of exhaustion.
(8th Cir. 1998).
Carmichael v. White, 163 F.3d 1044, 1045
Mr. Merrival’s first objection is overruled.
MR. MERRIVAL’S ATTEMPT TO EXHAUST THE STATE
REMEDIES WAS OBSTRUCTED BY THE STATE COURT.
Mr. Merrival claims the Seventh Judicial Circuit Court forced him to file
the direct appeal and that this constituted an obstruction of his right to due
(Docket 13 at p. 8).
Requiring a party to complete a direct appeal
before initiating a state habeas proceeding is not an obstruction of a petitioner’s
right to file a state habeas petition.
Mr. Merrival’s second objection is overruled.
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. Having carefully reviewed the
record in this case and good cause appearing, it is
ORDERED that Mr. Merrival’s objections (Docket 12) to the report and
recommendation are overruled.
IT IS FURTHER ORDERED that the report and recommendation (Docket
10) is adopted in full.
IT IS FURTHER ORDERED that the petition (Dockets 1 & 9) is dismissed
IT IS FURTHER ORDERED that Mr. Merrival’s remaining motions (Dockets
3, 6 & 16) are denied as moot.
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.
Although the court declines to issue a certificate of appealability, Mr.
Merrival 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 September 12, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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