United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS
LAWRENCE L. PIERSOL, District Judge.
Respondent Doug Weber has moved to dismiss John Graham's (Graham) petition for writ of habeas corpus which was filed under 28 U.S.C. § 2254. Graham opposes the motion. For the following reasons, the motion to dismiss will be denied.
On January 26, 2011, a jury convicted Graham of felony murder of Annie Mae Aquash in violation of SDCL 22-16-9. He was acquitted of premeditated murder. The South Dakota Supreme Court affirmed Graham's conviction on May 30, 2012. State v. Graham, 815 N.W.2d 293 (S.D. 2012). Graham's petition for state habeas corpus relief was denied on the merits, and a certificate of probable cause was not issued. (Doc. 31-1.) Graham timely filed a pro se motion for certificate of probable cause with the South Dakota Supreme Court pursuant to 21-27-18.1. (Doc. 31-2). On July 24, 2013, the South Dakota Supreme Court issued an Order to Show Cause indicating that it appeared service of the motion for certificate of probable cause was not made upon both the attorney general and the appropriate state's attorney' when the motion was made" as required by SDCL 21-27-18.1. (Doc. 31-3.) The court directed Graham to show cause why the appeal should not be dismissed for failure to make proper service of the motion for certificate of probable cause. ( Id. ) Graham responded:
My failure to serve the opposing party when I filed the motion with the Supreme Court was due to the extreme time pressure was excusable neglect. I am a pro se petitioner and the court denied my request for appointed counsel. An out of state attorney Mr. Paul Wolf agreed to help me with a federal Habeas Corpus petition but not the state petition and I am unable to pay any attorney in So. Dakota to help me. Mr. Wolf called numerous attorney's and spoke to fourteen So. Dakota attorney's on the phone for me but I was not able to raise enough money to hire even the least expensive one.
I received the circuit court order on July 3rd, mailed it to Mr. Wolf on the first available mail day after the 4th of July long weekend, Monday July 8th. The envelope was postmarked July 10th, Mr. Wolf received it on July 15th, he wrote a motion for me that same night and sent it to me priority mail the next morning July 16th, I received it on Thursday July 18th. Since the twenty day time limit expired on Saturday and I couldn't be sure the prison legal worker would be available on Friday the 19th, I sent it to the Supreme Court the same day I received it on July 18th. The court should consider this excusable neglect since I have no assistance of counsel and I thought that filing the motion on time was the priority.
A pro se prisoner's habeas corpus petition is considered filed on the date he delivers it to prison officials for mailing to the district court. Burn's v. Morton , 134 F.3d 109, 113 (3rd Cir. 1998). The Supreme Court should consider the filing of this motion the same way. The failure of service should only result in a dismissal without prejudice. Ourts v. Cummins , 825 F.2d 1276, 1278 (8th Cir. 1987). The court should consider my failure to serve the opposing party as without prejudice and consider my petition on the merits particularly since it concerns issue of state law that are better heard in a state habeas Petition than in a federal Petition.
(Doc. 31-4.) Respondent argued that the motion for certificate of probable cause should be dismissed because Graham did not show cause for failing to serve the motion when he filed it with the Supreme Court. (Doc. 31-5.) On September 9, 2013, the South Dakota Supreme Court issued an order dismissing the motion for certificate of probable cause "for failure to serve a copy of the motion upon the opposing party, this service being a prerequisite to the Court's jurisdiction to consider said motion pursuant to SDCL 21-27-18.1." (Doc. 31-6.)
Graham timely filed his federal habeas petition. Respondent argues the petition should be dismissed because Graham procedurally defaulted all of his habeas claims by failing to advance them properly through the South Dakota courts. Graham objects to dismissal and requests a ruling on the merits of his claims.
"A claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration...." Cone v. Bell, 556 U.S. 449, 467 (2009). Procedural default prevents federal court review of a state court decision that rests on "independent and adequate state procedural grounds." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This rule applies to bar federal habeas claims that a state has declined to consider because of the prisoner's failure to satisfy a state procedural requirement. See id. "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Id. at 732. "In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court." Id.
The "procedural default" doctrine was explained by the Eighth Circuit in White v. Bowersox as follows:
Procedural default of a claim under state law may constitute an independent and adequate state ground, Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), but only if the state procedural rule is firmly established, regularly followed, and readily ascertainable. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The underlying principle is "that failure to follow state procedures will warrant withdrawal of a federal remedy only if those procedures provided the habeas petitioner with a fair opportunity to seek relief in state court." Easter v. Endell, 37 F.3d 1343, 1347 (8th Cir. 1994). Or, as Justice Holmes expressed it, "[w]hatever springes the State may set for those who are endeavoring to assert rights that the State ...