Gard v. Fluke et al

Filing 14

ORDER denying as moot 3 Motion to Appoint Counsel; granting 8 Motion to Dismiss; adopting 11 Report and Recommendation; overruling 12 objections; denying 13 Motion to Stay and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 7/9/19. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
REX GARD,

CIV. 18-5040-JLV
Petitioner,

vs.

ORDER

BRENT FLUKE, Warden, Mike Durfee
State Prison; JASON RAVNSBORG, 1
Attorney General,
Respondents.
INTRODUCTION
Petitioner Rex Gard filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. (Docket 1). Mr. Gard asserts “an actual innocence claim
as well as ineffective assistance of trial, appeal, and habeas counsel” violating
the federal and South Dakota constitutions. Id. at ¶ 2. However, the majority
of Mr. Gard’s petition is devoted to allegations that the South Dakota
Department of Corrections and the staff at the Mike Durfee State Prison in
Springfield, South Dakota, are not providing adequate legal assistance or
access to legal materials to prisoners. Id. at ¶¶ 3, 5-13. Respondents moved to
dismiss the petition. (Docket 9). Mr. Gard resists the motion to dismiss.
(Docket 10).

1Pursuant

to Federal Rule of Civil Procedure 25(d), Jason Ravnsborg is
automatically substituted for Marty Jackley, Attorney General.

Pursuant to a standing order of April 1, 2018, the matter was referred to
United States Magistrate Judge Daneta Wollmann pursuant to 28 U.S.C.
§ 636(b)(1)(B) for a report and recommendation (“R&R”). The magistrate judge
recommended the court dismiss this petition without prejudice because Mr.
Gard failed to obtain permission from the United States Court of Appeals for
the Eighth Circuit as required by 28 U.S.C. § 2244(b)(3)(A). (Docket 11). Mr.
Gard timely objected to the R&R. (Docket 12). 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). For
the reasons given below, the court overrules Mr. Gard’s objections, adopts the
R&R as supplemented by this order, and dismisses the petition. After the R&R
was filed, Mr. Gard moved for a stay “on these proceedings” to request leave
from the Eighth Circuit to file a subsequent habeas petition. (Docket 13). The
court denies the motion for a stay.
DISCUSSION
I.

Procedural History
Mr. Gard was convicted in a South Dakota jury trial of 13 counts of theft,

6 counts of forgery, and 1 count of conspiracy to commit grand theft. State v.
Gard, 742 N.W.2d 257, 259 (S.D. 2007). The state court judge sentenced Mr.
Gard to 65 years of prison. Id. The South Dakota Supreme Court affirmed the
conviction. Id. Mr. Gard petitioned for a writ of habeas corpus in South
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Dakota state court, which was denied. See Docket 9-6 (respondents’ copy of
the order denying the writ). The South Dakota Supreme Court denied a
certificate of probable cause that an appealable issue existed. (Docket 9-10).
Mr. Gard then filed his first petition for a writ of habeas corpus in this
court. Gard v. Weber, Civ. 10-5017, Docket 1 (D.S.D. Mar. 25, 2010). The first
petition alleged his state court sentence violated the Eighth Amendment and
his trial counsel was ineffective. Id., Docket 36 at p. 13 (D.S.D. Mar. 3, 2012).
The court denied Mr. Gard’s petition. Id. at p. 29. The Eighth Circuit denied
Mr. Gard’s application for a certificate of appealability and dismissed his
appeal. Id., Docket 48. Mr. Gard filed his second petition for a writ of habeas
corpus on June 14, 2018. (Docket 1).
The magistrate judge recommended the court dismiss the second petition
without prejudice because Mr. Gard did not obtain permission from the Eighth
Circuit to file the second petition. (Docket 11 at p. 4). In his objections to the
R&R, Mr. Gard restates the merits of his petition but does not state he
obtained permission from the Eighth Circuit to file the petition. (Docket 12).
II.

Legal Standard
“Federal law opens two main avenues to relief on complaints related to

imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint
under the Civil Rights Act of 1871 . . . 42 U.S.C. § 1983. Challenges to the
validity of any confinement or to particulars affecting its duration are the
province of habeas corpus . . . ; requests for relief turning on circumstances of

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confinement may be presented in a § 1983 action.” Muhammad v. Close, 540
U.S. 749, 750 (2004).
“Before a second or successive [petition for a writ of habeas corpus] is
filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the [petition].”
28 U.S.C. § 2244(b)(3)(A).
III.

Analysis
Mr. Gard’s petition presents two distinct issues. First, he explicitly seeks

habeas relief, “fil[ing] this subsequent petition for writ of habeas corpus based
on an actual innocence claim as well as [an] ineffective assistance of trial,
appeal, and habeas counsel” claim. (Docket 1 at ¶ 2). Second, Mr. Gard
asserts the South Dakota Department of Corrections and prison officials are
violating his constitutional right to access legal materials. Id. at ¶¶ 3, 5-13.
Although these two claims require separate legal analyses, the court concludes
they must both be dismissed without prejudice.
Mr. Gard’s first claim is an unauthorized second or successive petition
for a writ of habeas corpus. The court denied Mr. Gard’s first petition on its
merits, which include the claims Mr. Gard presents in his second petition.
Gard v. Weber, Civ. 10-5017, Docket 36 (D.S.D. Mar. 3, 2012). Mr. Gard did
not seek permission from the Eighth Circuit to file the present petition. See
Docket 10 at p. 1 (admitting Mr. Gard was “not aware” of the appellate court
authorization requirement). Agreeing with respondents and the magistrate
judge, the court concludes it must dismiss Mr. Gard’s first claim as an
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unauthorized second or successive habeas petition. 28 U.S.C. § 2244(b)(3)(A).
Mr. Gard’s objections, to the extent they attack the magistrate judge’s
conclusion on this point, are overruled and the R&R is adopted.
The court must also deny Mr. Gard’s request for a stay. He asks for a
stay “in order to request leave to file a subsequent habeas” petition from the
Eighth Circuit. (Docket 13). However, successive habeas petitioners must
obtain appellate permission “[b]efore a second or successive [petition] is filed in
the district court[.]” 28 U.S.C. § 2244(b)(3)(A). The statutory language does not
contemplate successive habeas petitioners obtaining appellate permission after
their successive petition has been filed in the district court. The appropriate
procedure here is for the court to dismiss Mr. Gard’s present successive habeas
petition. Mr. Gard may then seek permission from the Eighth Circuit to file a
successive habeas petition and, if permission is granted, refile his petition in
this court.
Neither respondents nor the magistrate judge evaluated Mr. Gard’s
second claim concerning access to legal materials. This claim was not raised in
Mr. Gard’s first habeas petition and so may not be second or successive. 2 See
Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (“[A] habeas petition
raising a claim that had not arisen at the time of a previous petition is not
barred by § 2244(b)[.]”). However, the court concludes the second claim is not
Gard did file an ex parte motion seeking access to “an unlimited
number of copies of case law, or a research based software” in his first habeas
petition. Gard v. Weber, Civ. 10-5017, Docket 28 (D.S.D. July 11, 2011). That
motion did not assert state authorities were violating his constitutional right to
legal materials.
2Mr.

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properly characterized as a habeas claim. It does not challenge the “validity of
any confinement or . . . particulars affecting its duration[.]” Muhammad, 540
U.S. at 750. Instead, it “requests relief turning on circumstances of
confinement[.]” Id. Such a claim may be brought under § 1983. Id. The
appropriate course of action is to dismiss the second claim without prejudice
and allow Mr. Gard to refile the claim, if he chooses, under § 1983. Martin v.
Overton, 391 F.3d 710, 714 (6th Cir. 2004) (dismissing without prejudice
habeas claim properly characterized as a § 1983 claim).
The court notes Mr. Gard frequently files § 1983 cases in the Southern
Division of this court and is familiar with the standards applicable to suits
brought under that statute. See Gard v. Kaemingk et al., Civ. 13-4062; Gard v.
Dooley et al., Civ. 14-4023; Gard v. Dooley et al., Civ. 14-4179; Gard v. Dooley
et al., Civ. 14-4183. The court discerns little prejudice in requiring Mr. Gard to
pursue his claim under the appropriate statute.
Mr. Gard’s objections to the R&R concerning the magistrate judge’s
refusal to evaluate his claim regarding access to legal materials are overruled.
Although the magistrate judge did not consider this claim separately, the court
nevertheless accepts her recommendation that the petition be dismissed
without prejudice in its entirety.
ORDER
For the reasons given above, it is
ORDERED that Mr. Gard’s objections to the report and recommendation
(Docket 12) are overruled.
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IT IS FURTHER ORDERED that the report and recommendation (Docket
11) is adopted as supplemented by this order.
IT IS FURTHER ORDERED that respondents’ motion to dismiss the
petition (Docket 8) is granted.
IT IS FURTHER ORDERED that Mr. Gard’s petition (Docket 1) is
dismissed without prejudice.
IT IS FURTHER ORDERED that Mr. Gard’s motion to appoint counsel
(Docket 3) is denied as moot.
IT IS FURTHER ORDERED that Mr. Gard’s motion for a stay (Docket 13)
is denied.
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. Gard may
timely seek a certificate of appealability from the United States Court of
Appeals for the Eighth Circuit under Federal Rule of Appellate Procedure 22.
See Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts; Fed. R. App. P. 22.
Dated July 9, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY VIKEN
CHIEF JUDGE
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