United States District Court, D. South Dakota, Western Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, Magistrate Judge.
Petitioner Dennis Ray Sund is before this court on a second petition for habeas corpus pursuant to 28 U.S.C. § 2254. See Docket No. 1. Respondents were ordered to file a response and in doing so, moved to dismiss Mr. Sund's petition without granting relief. See Docket No. 6. This matter was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district judge. The following is this court's recommended disposition.
FACTS AND PROCEDURAL HISTORY
A. Proceedings in State Court
In April, 2013, Mr. Sund was convicted in Spink County, South Dakota, of DUI-4th Offense and Felony Failure to Appear. He was sentenced to five years in prison for the DUI with two years suspended and two years imprisonment on the failure to appear. Both sentences were to be served concurrently. Mr. Sund appealed his convictions to the South Dakota Supreme Court.
The South Dakota Supreme Court affirmed Mr. Sund's convictions in an opinion issued January 21, 2014. No petition for certiorari was filed with the United States Supreme Court. Immediately following the conclusion of Mr. Sund's direct appeal, he did not file a habeas petition in state court.
B. First Federal Habeas Petition
Mr. Sund filed his first habeas petition in federal court on April 9, 2014. See Sund v. Young, Civ. No. 14-4052, Docket No. 1 (D.S.D. Apr. 9, 2014). Mr. Sund was granted parole in state proceedings on May 2, 2014. His federal habeas petition was dismissed on June 3, 2014, because Mr. Sund had never filed a petition seeking habeas relief in state court. See id. at Docket Nos. 8, 9, & 10. Therefore, he had failed to exhaust his available state remedies. Id . Mr. Sund did not appeal from the dismissal of this first federal habeas petition. Id.
C. State Habeas Petition
After the dismissal of his federal habeas petition, Mr. Sund filed a state habeas petition on June 4, 2014, in Spink County. On June 24, 2014, the state filed a motion to dismiss Mr. Sund's state petition on the grounds that he had been paroled and was no longer "in custody." The state circuit court granted the state's motion and dismissed Mr. Sund's state habeas petition, citing Bostick v. Weber, 2005 S.D. 12, 692 N.W.2d 517. An order denying the petition was filed on October 7, 2014. No notice of entry of this order appears in the state court record. Mr. Sund did not request the circuit court to issue a certificate of probable cause. Nor did he seek a certificate of probable cause from the South Dakota Supreme Court. No appeal from this decision was filed with the South Dakota Supreme Court.
Respondents in this action concede that Mr. Sund currently has no "currently available, non-futile state remedies" because he is no longer in custody. See Docket No. 5 at p. 8 (citing Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988)).
D. Second Federal Habeas Petition
Mr. Sund filed his second federal habeas petition in this court on October 15, 2014. See Docket No. 1. Respondents concede that Mr. Sund's petition is timely as it was filed within one year of the date his state court conviction became final.
A. State Court ...