The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING STAY AND PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Donald Ray White, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. White also moves for an order staying all claims pending exhaustion of state court remedies for unexhausted claims. Respondent opposes both the petition for writ of habeas corpus and the stay.
White was convicted of first-degree robbery in a South Dakota state court on August 25, 2004. On August 9, 2004, White was tried on an unrelated grand theft charge, which resulted in a guilty verdict. White's counsel in his state petition for habeas corpus discovered that a juror in the case had been empaneled in White's grand theft trial, but had not been chosen to serve as a juror. In the grand theft case, the juror in question was number 39 out of 52 potential jurors to appear in court. Because the strike down method was used for jury selection in that trial, only the first 33 jurors were examined by attorneys for both parties. The juror at issue was in the courtroom and heard the questioning, but he was not questioned. Two weeks later, she was selected as a juror for the robbery trial. White was represented by the same counsel in both trials. This petition addresses only the robbery conviction.
The robbery conviction stems from a hold-up at a convenience store in Sioux Falls, South Dakota. On the night in question, White entered the convenience store, waited for another customer to leave, approached Brian Lopez, the clerk, said "This is a stick-up," and displayed what the clerk perceived as a weapon in one hand. The clerk gave White the contents of the cash register and notified police after White fled. Later, the clerk picked White out of a photographic line-up and identified him as the robber. At trial, Detective Mixell of the Sioux Falls police department testified as to this identification. Another witness, Amy Blackburn, who was acquainted with White, placed him in the area around the time of the robbery. After the jury found him guilty of robbery, White was sentenced to 20 years in the South Dakota State Penitentiary.
White filed a direct appeal, which was dismissed on his motion on November 16, 2004. He then filed a petition for writ of habeas corpus on October 13, 2006, in the Second Judicial Circuit of South Dakota. He amended his petition on December 14, 2006. A second amended petition for writ of habeas corpus was filed on March 1, 2007. White alleged various grounds for relief. These grounds were: (1) counsel failed to exclude the juror from serving on the jury, which prejudiced the outcome of trial; and (2) counsel failed to make and preserve appropriate procedural and evidentiary objections. The state circuit court denied White's petition for a writ of habeas corpus on June 2, 2008. The South Dakota Supreme Court affirmed the denial on June 17, 2009, rejecting these claims and White's argument that allowing the juror in question to testify in the habeas corpus hearing violated SDCL 19-14-7 (Rule 606(b)).
On July 17, 2009, White filed a pro se petition for a writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254. In his petition, White advances several grounds for relief, which are: (1) that the presence of the juror biased the jury panel so as to deprive White of due process of law and an impartial jury; (2) that the testimony of the juror at the state habeas corpus hearing violated the prohibition contained in SDCL 19-14-7 (Rule 606(b)) against juror testimony regarding jury deliberations; (3) that the trial court admitted Detective Mixell's testimony in violation of the hearsay rule; and (4) that trial counsel was ineffective in failing to object to or preserve for appeal prior identification evidence as hearsay.
On September 24, 2009, Magistrate Judge John E. Simko found that White's petition was timely under the AEDPA and ordered respondent to answer the petition. Respondent filed his answer on October 23, 2009. On November 20, 2009, White filed a reply and memorandum in support of reply, which alleged additional grounds for relief. These grounds are: (5) that White was deprived of a meaningful opportunity to challenge his convictions because appointment of counsel pursuant to SDCL 21-27-1 prevented him from filing a pro se brief; (6) that the racial bias of the trial judge deprived him of a fair trial; (7) that the State did not meet its burden of proof as to the force or fear of force element of robbery; (8) that trial counsel was ineffective in failing to move for a directed verdict of not guilty; (9) that trial counsel was ineffective in failing to object to the defendant's appearance in prison clothes at trial; and (10) that trial counsel was ineffective in failing to properly investigate the juror list. On March 8, 2010, White filed a motion to stay his petition in order to exhaust all unexhausted grounds for relief as set forth in his reply to respondent's answer.
Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), governs a district court's authority to grant writs of habeas corpus to state prisoners. Section 2254 provides that a writ of habeas corpus should "not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless," the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or unless the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented...." 28 U.S.C. § 2254(d). Under the AEDPA, it is not enough to find that the state court applied clearly established federal law erroneously or incorrectly-the application must also be unreasonable. Williams v. Taylor, 529 U.S. 362, 411 (2000) ("an unreasonable application is different from an incorrect one").Accordingly, a federal court applies a deferential standard of review when assessing a state court's disposition of a state habeas petition. See Barnett v. Roper, 541 F.3d 804, 814 (8th Cir. 2008).
This court may not consider a claim for relief in a habeas corpus petition if the petitioner has not exhausted his state remedies. 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. See 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).
A four-step analysis governs whether a federal court can consider a habeas petition when the petitioner has not presented the claims to the state court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988). Initially, "the court must determine if the petitioner fairly presented the federal constitutional dimensions of his federal habeas corpus claim to the state courts." Id. If not, the federal court must next consider whether the exhaustion requirement is nevertheless met because no "currently available, non-futile state remedies through which petitioner can present his claim" exist. Id. (quoting Laws v. Armontrout, 834 F.2d 1401, 1412 (8th Cir. 1987)). If a state remedy does not exist, the court must determine whether petitioner has demonstrated "adequate cause to excuse his failure to raise the claim in state court properly."Id. (quoting Laws, 834 F.2d at 1415). If petitioner has shown sufficient cause, the court must decide whether he has "shown actual prejudice to his defense resulting from the state court's failure to address the merits of the claim." Id. The petitioner must prevail at each step of the analysis to prevent dismissal of his petition. Id.
A. Claims Presented to the State Court
Fairly presenting a federal claim requires more than simply going through the state courts:
The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.
Picard v. Connor, 404 U.S. 270, 276 (1971). It is also not enough for the petitioner to assert facts necessary to support a federal claim or to assert a similar state-law claim. Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993). "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." Id. "The petitioner must 'refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.' " Id. This does not, however, require petitioner to cite "book and verse on the federal constitution." Picard, 404 U.S. at 278 (citing Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). The petitioner must simply make apparent the constitutional substance of the claim. Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir. 1992).
Respondent asserts that several claims are unexhausted. White's third claim, that the trial court allowed Detective Mixell to testify as to outof-court statements, was not made on direct appeal or raised in his state habeas petition. Furthermore, White did not directly petition the South Dakota Supreme Court for a certificate of probable cause as to this issue, pursuant to SDCL 21-27-18.1.
Respondent also asserts that White's fourth claim, that trial counsel was ineffective in failing to properly investigate the jury list or object to or preserve for appeal the state's prior identification evidence as hearsay, was not presented in state court. This issue was not addressed in White's state petition for a writ of habeas corpus and the state circuit court did not issue a certificate of probable cause on this issue. Nor did White file a separate motion for issuance of a certificate of probable cause with the South Dakota Supreme Court. White raised this issue before the South Dakota Supreme Court in his appeal on the denial of his state habeas petition. However, the court did not address this issue, as no certificate of probable cause was issued for this claim. White v. Weber, 2009 SD 44, ¶10, 768 N.W.2d 144, 148. Accordingly, the court finds these claims are unexhausted.
White's reply to the respondent's answer to his petition alleges four grounds for relief not found in his petition. White argues that he was deprived of a meaningful opportunity to challenge his conviction because he received court-appointed habeas counsel and was subsequently not permitted to file a pro se brief in support of his state habeas petition. White's next federal habeas claim is that the racial bias of the trial judge deprived him of a fair trial and that such bias cannot be harmless error.
Third, White argues that the state did not meet its burden of proof as to the "force or fear of force element" required for a robbery conviction under SDCL 22-30-1, 22-30-2, 22-30-3. The court finds these claims were not presented in state court. White did not file a direct appeal, nor did he raise these arguments in his state habeas corpus proceeding. Accordingly, these claims were not adequately presented to the state court and they are unexhausted claims.
The last ground for relief raised in White's reply asserts that his trial counsel was ineffective in failing to move for a directed verdict of not guilty and failing to object to White's appearance in prison clothes at trial. While White did allege ineffective assistance of trial counsel in his state habeas proceeding, that claim was not predicated upon the facts alleged here. "A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts which he is attempting to raise in his ...