Elliott v. South Dakota Seventh Circuit Court

Filing 7

ORDER FOR SERVICE and TO SHOW CAUSE: Response due from the parties by 7/2/2018. Signed by US Magistrate Judge Veronica L. Duffy on 5/25/2018. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
RAYMOND D. ELLIOTT,

5:18-CV-05029-JLV

Petitioner,
vs.

ORDER FOR SERVICE

SOUTH DAKOTA SEVENTH CIRCUIT
COURT,
Respondent.
Petitioner, Raymond D. Elliott, an inmate at the Rapid City Minimum Unit
in Rapid City, South Dakota, has filed a petition for writ of mandamus. See
Docket No. 1. From the writ and other materials Mr. Elliott has filed, the court
concludes he was convicted of aggravated assault in South Dakota state court and
sentenced on March 28, 2017, to four years’ imprisonment. See Docket No. 1-4.
Mr. Elliott seeks to collaterally attack his state court conviction. See Docket No. 1.
He also seeks an order from this court setting him free from his present
incarceration. See Docket Nos. 1 & 4.
The court previously sent Mr. Elliott a form for filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 and asked him to fill out the form.
See Docket No. 5. Mr. Elliott subsequently sent a letter indicating that he would
like to pursue a writ because of his advanced age (83) and his perception that he
might receive his requested remedy sooner through a writ. See Docket No. 6.

The Eighth Circuit states categorically that the exclusive vehicle for
habeas relief for prisoners in the custody of a state is 28 U.S.C. § 2254. See

Singleton v. Norris, 319 F.3d 1018, 1022-23 (8th Cir. 2003); Crouch v. Norris,
251 F.3d 720, 723 (8th Cir. 2001). “A person in custody pursuant to the
judgment of a State court” can only obtain habeas relief through § 2254, no
matter how his pleadings are styled. Crouch, 251 F.3d at 723. “Prisoners
cannot avoid the . . . rules [governing federal habeas remedies] by inventive
captioning . . . [T]he name makes no difference. It is substance that controls.”
Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007). Thus, despite the
caption of Mr. Elliott’s pleading as a “writ of mandamus,” the fact is that he is
seeking to invalidate his state court conviction and be freed from incarceration
at the hands of the state. That is quintessential habeas relief. Thus, 28 U.S.C.
§ 2254 is the sole applicable source of remedy. Singleton, 319 F.3d 1022-23;
Crouch, 251 F.3d at 723; Curry, 507 F.3d at 604. The court therefore
construes Mr. Elliott’s application for a writ of mandamus to be, in fact, a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
There are a number of procedural rules that apply to an application for
habeas relief by a state prisoner under § 2254. Chief among them is the
doctrine of state court exhaustion, which limits federal habeas review of state
court convictions as follows:.
(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; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
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(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.
See 28 U.S.C. § 2254(b) and (c). The above codifies what was previously a
judicial doctrine of exhaustion.
A federal court may not consider a claim for relief in a habeas corpus
petition if the petitioner has not exhausted his state remedies. See 28 U.S.C.
§ 2254(b). “[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). If a ground for
relief in the petitioner’s claim makes factual or legal arguments that were not
present in the petitioner’s state claim, then the ground is not exhausted.
Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir. 1991). The exhaustion
doctrine protects the state courts’ role in enforcing federal law and prevents the
disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518
(1982). The Supreme Court has stated:
Because “it would be unseemly in our dual system of government
for a federal district court to upset a state court conviction without
an opportunity to the state courts to correct a constitutional
violation,” federal courts apply the doctrine of comity, which
“teaches that one court should defer action on causes properly
within its jurisdiction until the courts of another sovereignty with
concurrent powers, and already cognizant of the litigation, have
had an opportunity to pass upon the matter.”
Rose, 455 U.S. at 518 (citation omitted). The exhaustion rule requires state
prisoners to seek complete relief on all claims in state court prior to filing a writ
of habeas corpus in federal court. Federal courts should, therefore, dismiss a
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petition for a writ of habeas corpus that contains claims that the petitioner did
not exhaust at the state level. See 28 U.S.C. ' 2254; Rose, 455 U.S. at 522.
The exhaustion requirement is waived “only in rare cases where exceptional
circumstances of peculiar urgency are shown to exist.” Mellott v. Purkett, 63
F.3d 781, 784 (8th Cir. 1995).
A federal court must determine whether the petitioner fairly presented an
issue to the state courts in a federal constitutional context. Satter v. Leapley,
977 F.2d 1259, 1262 (8th Cir. 1992). “To satisfy exhaustion requirements, a
habeas petitioner who has, on direct appeal, raised a claim that is decided on
its merits need not raise it again in a state post-conviction proceeding.” Id.
“[S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan, 526 U.S. at 845. “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).
This federal court has reason to believe the claims Mr. Elliott presents in
his pleadings herein have not been exhausted in state court. Mr. Elliott refers
to signing a document dismissing his direct appeal from his conviction. See
Docket No. 1. He has also provided this court with copies of pleadings in the
nature of habeas relief which he is concurrently filing in state circuit court.
See Docket Nos. 6-1 & 6-2. Accordingly, it would appear the claims Mr. Elliott

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has presented to this court have not been presented and fully adjudicated in
state circuit court and the South Dakota Supreme Court.
Based upon the record,
IT IS ORDERED
(1)

that the Clerk of Court is directed to serve upon the respondent
and the Attorney General of the State of South Dakota a copy of
document numbers 1, 3, 4, 5 and 6, and this order;

(2)

that respondent will file and serve a response to the petition within
thirty (30) days after receipt of this order. Respondent shall also
file the complete state court records in Mr. Elliott’s state court
case, as well as any and all state habeas cases.

IT IS FURTHER ORDERED
That both respondent and Mr. Elliot shall show cause no later than July
2, 2018, why Mr. Elliott’s petition should not be dismissed without prejudice
for failure to present his claims to the state courts first and to exhaust his
remedies before the circuit and supreme courts of the state of South Dakota.
Mr. Elliott is notified that failure to respond to the above order to
show cause may result in dismissal of his petition in this court.
DATED this 25th day of May, 2018.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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