The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER TO SHOW CAUSE AND APPOINTMENT OF COUNSEL
This matter is before the court pursuant to a petition under 28 U.S.C. § 2254 for a writ of habeas corpus filed by Petitioner Lynn Joseph Two Eagle on May 21, 2010. [Docket No. 1]. Mr. Two Eagle's petition for a writ of habeas corpus and all related motions were referred to this magistrate judge for a report and recommendation to the district court pursuant to the district court's order dated June 18, 2010, [Docket No. 5], and 28 U.S.C. § 636(b)(1)(B).
In response to Mr. Two Eagle's petition, the government filed a motion to dismiss Mr. Two Eagle's petition for habeas relief and an accompanying memorandum in support of the motion [Docket Nos. 8, 9]. Mr. Two Eagle has never responded to the respondent's motion.
FACTS AND PROCEDURAL HISTORY
The factual and procedural history of this case are limited to those events relevant to this discussion. This case arose in the Seventh Judicial Circuit Court, Pennington County, South Dakota.*fn1 On October 17, 2001, Mr. Two Eagle pleaded guilty but mentally ill to a charge of first degree burglary. See Pennington County Criminal File 01-1186 ("SR"), at Docket 74. On October 16, 2002, Mr. Two Eagle sought and was eventually granted habeas relief because the state court had failed to hold a hearing regarding Mr. Two Eagle's mental status, as required by S.D.C.L. § 23A-7-16. Pennington County Civil File 02-1122 ("HSR"), at Docket 72. On August 15, 2005, Mr. Two Eagle's plea was withdrawn and the plea agreement nullified. Id.
On November 21, 2005, Mr. Two Eagle was charged with attempted first degree robbery. SR 113. He entered a plea of guilty but mentally ill to that charge on January 6, 2006. SR 121. The trial court entered judgment on February 6, 2006, and sentenced Mr. Two Eagle to 12 1/2 years in the South Dakota State Penitentiary, with 3 1/2 years of that sentence suspended on conditions. SR 121.
Mr. Two Eagle filed a notice of appeal to the South Dakota Supreme Court on March 16, 2006. After several of Mr. Two Eagle's requests for extensions of time to file his appellate brief were granted, and the court granted leave for Mr. Two Eagle to file a pro se amended brief, the South Dakota Supreme Court affirmed his conviction on March 31, 2008. SR 203. Mr. Two Eagle did not seek further review by the South Dakota Supreme Court, or by the United States Supreme Court. See Civ. 10-5035-JLV, Docket No. 1.
Following his sentencing, Mr. Two Eagle wrote numerous letters to the state court, airing various grievances about his confinement and perceived lack of communication with the court and counsel. He also filed several pro se petitions seeking habeas relief. On June 27, 2008, the Pennington County Circuit Court issued its first memorandum habeas decision, findings of fact, conclusions of law, and order denying habeas relief. HSR 73. On April 9, 2009, the Pennington County Circuit Court issued its second memorandum decision and order denying Mr. Two Eagle's petition for habeas relief. HSR 83.
On February 10, 2010, with the assistance of counsel, Mr. Two Eagle filed with the state court another application for habeas corpus relief. (Filed in HSR without a docket number; located immediately following HSR 92). The petition challenged the judgment of conviction entered by the circuit court on February 6, 2006. Mr. Two Eagle's petition alleged violations of his right to due process under the Fifth and Fourteenth Amendments and Article Six, Section Two of the South Dakota Constitution; violation of his right against cruel and unusual punishment under the Eighth and Fourteenth Amendments and Article VI, Section Twenty-Three of the South Dakota Constitution. His petition raised six issues:
a. That the evidence was insufficient to show that Mr. Two Eagle was competent to enter a plea at the time he plead guilty but mentally ill (Grounds 14.a and 14.b);
b. That the guilty but mentally ill plea was invalid, because the court failed to advise Mr. Two Eagle of his constitutional rights, waiver of rights, nature of the claim, elements of the offense, whether a factual basis for the plea existed, and whether the plea was voluntary (Ground 14.c);
c. That the judgment imposed constituted cruel and unusual punishment because Mr. Two Eagle was ordered to pay $3,000 for unspecified costs from a previous judgment that was entirely vacated prior to Mr. Two Eagle's sentence (Ground 14.d);
d. That Mr. Two Eagle's confinement and parole constituted cruel and unusual punishment because he was denied psychiatric treatment throughout his incarceration, parole, and re-incarceration (Ground 14.e);
e. That Mr. Two Eagle's confinement constituted a continuing violation of due process, because he was serving time on a suspended portion of sentence from a suspended imposition for violating parole from the unsuspended portion of the sentence, and there is no lawful authority for revoking a suspended sentence in the absence of a violation of a term of the original judgment (Ground 14.f).
On February 24, 2010, the circuit court dismissed with prejudice Mr. Two Eagle's petition for habeas relief. HSR 92. The court determined that no appealable issue existed and declined to issue a certificate of probable cause. HSR 93. There is no indication in the record that Mr. Two Eagle thereafter filed a ...