The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING RELIEF AND DISMISSING CASE
Petitioner, Ted A. Klaudt, is incarcerated at Mike Durfee State Prison. He moves pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Klaudt amended his petition to pursue a writ of certiorari, a writ of audita querela, and a writ of error coram nobis in addition to habeas corpus. He also filed an "emergency petition" to amend the reference to him in the caption of this action from TED A. KLAUDT to Ted a. Klaudt. Klaudt further seeks an order of immediate release, moves to strike respondents' motion to dismiss and answer to his petition, and asks this court to order that a grand jury be convened to consider charging all respondents with treason. Respondents move to dismiss his petition for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They also argue that Klaudt has failed to exhaust his claims in state court.
On January 17, 2008, Klaudt was convicted of four counts of second degree rape in the Sixth Judicial Circuit Court in Hughes County, South Dakota. Klaudt, a former state legislator, and his wife provided foster care for children placed in their custody by the state of South Dakota. His convictions stem from a series of fake "fertility" exams that Klaudt performed upon two of his foster daughters.*fn1 Klaudt concocted a fake egg donation scheme and convinced the girl she could earn up to $10,000 per buyer if she sold her eggs to infertile women. Believing Klaudt, the victim allowed him to perform "exams" upon her when she was 17 or 18 years old. The incidents in question in this case occurred in Klaudt's hotel room in Pierre, during the state legislative session.
At the hotel, Klaudt produced a speculum, tape measure, latex gloves, a caliper, antibacterial gel, tubing, syringes, and a vibrator. Klaudt first conducted a breast exam, measuring the victim's nipples under her shirt and feeling the glands in her breasts, claiming he could determine how close she was to ovulation this way. Next, Klaudt checked her ovaries, by inserting his gloved fingers into her vagina and pressing down on her stomach with his other hand. Next, he would use the vibrator to perform what he called vaginal stimulation. He would then insert a speculum, insert a fluid into her vagina with a syringe, and then withdraw it, completing the "examination."
Klaudt also wrote a series of e-mails to the victim, in which he pretended to be Terri Linee, a woman who claimed to be a middleman in the egg donation scheme. These e-mails promised payment and stated that clients had been found to buy the victim's eggs. At one point, Klaudt paid the victim $250 from his own accounts, although the victim believed it was a payment from the egg donation organization. A number of the e-mails pressured the victim to continue with the examinations and one even threatened to pursue a collections action against her if she did not go forward with the egg donation. After the victim left for college, Klaudt continued to contact her as Terri Linee and created other e-mail accounts to contact her, purporting to be other people. Some of the e-mails attempted to create problems in the victim's relationship with her boyfriend. Klaudt also used the other e-mail accounts to contact other people to spy on the victim. This pattern of harassment, coupled with very frequent phone calls from Klaudt, prompted the victim to change her phone number and tell her mother of the egg donation scheme and exams. The South Dakota Department of Criminal Investigation was contacted, and it began an investigation.
After a jury trial, Klaudt was convicted of four counts of second-degree rape and sentenced to eleven years in prison on each count, to run consecutively. See Docket 23-6. The South Dakota Supreme Court affirmed his convictions on direct appeal. State v. Klaudt, 2009 SD 71, 772 N.W.2d 117. Klaudt did not file a writ of habeas corpus in state circuit court. He did attempt to file some papers captioned as a state habeas case, but he never stated grounds for relief or facts to support them, as required by SDCL 21-2-3 and 21-27-16.1. The papers were returned to him by the clerk of courts and were never filed in state court. On July 14, 2010, Klaudt filed his federal petition.
I. Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
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). But "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). "[T]he exhaustion rule is not a rule of jurisdiction, and sometimes the interests of comity and federalism are better served by addressing the merits." Padavich v. Thalacker, 162 F.3d 521, 522 (8th Cir. 1998) (internal citations omitted).
This is particularly true when, as is the case here, the claims are non-meritorious. Id. Thus, the court considers the merits of Klaudt's claims.
A. Adequacy of Indictment
While Klaudt's petition is incomprehensible in places, his first ground for relief appears to challenge the sufficiency of the indictment. He argues that "the co-respondent's [sic] have all failed to fully disclose the nature and cause of the respondent's action by answering the Petitioner's demand for a bill of particulars." Docket 1 at 6. Respondents argue that the indictment was sufficient.
"[A] person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend." Cokeley v. Lockhart, 951 F.2d 916, 918 (8th Cir. 1991) (internal citations omitted). "This fundamental component of due process, guaranteed under the sixth amendment, is incorporated into the fourteenth amendment and cannot be abridged by the states." Id. Moreover, under the South Dakota Constitution, a criminal defendant is afforded the right to be informed of the charges against him by indictment or information. S.D. Const. art. VI, § 10. To determine whether a criminal defendant has received adequate notice, the reviewing court examines the charging document. Cokeley, 951 F.2d at 918. The adequacy of the charging document is primarily a question of state law. Lee v. Gammon, 222 F.3d 441, 442 (8th Cir. 2000). "For an indictment to be sufficient, it must contain the elements of the offense charged such that it apprises the defendant with reasonable certainty of the accusations against him, and it must enable him to plead an acquittal of conviction as a bar to future prosecutions for the same offense." State v. Basker, 468 N.W.2d 413, 416 (S.D. 1991).
Klaudt was given adequate notice of the charges against him. The Hughes County indictment informed him that he was charged with four counts of second-degree rape, in violation of SDCL 22-22-1(2). See Docket 23-1. The indictment also identified the victims and informed him that the offenses took place in January, February, and March of 2005 and January and February of 2006. Moreover, the elements of the crime were pleaded and the victims were identified by their initials.*fn2 The indictment was returned by a legally constituted and unbiased Hughes County grand jury. Moreover, Klaudt did not challenge the sufficiency of the indictment before or during the pendency of trial; thus, his current challenge is untimely. See SDCL 23A-8-3 ("Any . . . request which is capable of determination without the trial of the general issue may be raised before trial by motion . . . The following must be raised prior to trial . . . (3) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings[.]") (emphasis added). See also Fed. R. Crim. P. 12 ("The following must be raised before trial . . . a motion alleging a defect in the indictment or information--but at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or state an offense.") (emphasis added). Because the indictment was constitutionally sound, Klaudt's first ground for relief fails on the merits.
B. Jurisdiction of the Court
Klaudt also asserts that the Sixth Circuit Court in Hughes County did not have personal or subject matter jurisdiction over him and his offenses. His primary argument is that the trial court lacked jurisdiction over him because the American flag in the courtroom had fringe, which, according to Klaudt, rendered the court a military tribunal. Docket 1. Klaudt's second argument appears to contend that because he renounced his American citizenship after his conviction, the Hughes County judgment against him is invalid. Id. Respondent argues that the court had both personal and subject matter jurisdiction over Klaudt.
Klaudt's argument that the presence of fringe on the American flag affected the jurisdiction of the court is frivolous. It has been rejected by numerous courts, including this one. See, e.g., United States v. Mackovich, 209 F.3d 1227, 1234 (10th Cir. 2000) (rejecting the argument as frivolous and collecting cases); McCann v. Greenway, 952 F. Supp. 647, 651 (W.D. Mo. 1997) ("Jurisdiction is a matter of law, statute, and constitution, not a child's game wherein one's power is magnified or diminished by the display of some magic talisman."); United States v. Schiefen, 926 F. Supp. 877, 884 (D.S.D. 1995) ("Federal jurisdiction is determined by statute, not by whether the flag flown is plain or fringed."); State v. Hall, 8 S.W.3d 593, 604 n.6 (Tenn. 1999) ("From a historical and legal standpoint, the use of fringe on the flag has no inherent or established symbolism. It has nothing to do with the jurisdiction of the court or with martial law. It is purely a decorative addition to enhance the appearance of the flag."). Accordingly, this claim is without merit.
Klaudt's second argument concerns his declaration of expatriation. He appears to be arguing that because he filed a declaration of expatriation after his Hughes County conviction, the court lacked ...