United States District Court, D. South Dakota
JEFFREY L. VIKEN, Chief District Judge.
On March 4, 2015, plaintiff William Decory, appearing pro se, filed a complaint under 42 U.S.C. § 1983 and 28 U.S.C. § 2254 claiming various violations of his constitutional rights. (Docket 1). Mr. Decory also filed a motion for leave to proceed in forma pauperis . (Docket 2). Mr. Decory did not mark on the prisoner civil rights complaint form any of the listed jurisdictional bases for his complaint. (Docket 1). Mr. Decory asserts a jurisdictional basis for his complaint under "Decory v. Glass." Id. The court interprets Mr. Decory's first claim as an ineffective assistance of counsel claim against his former attorney, Connor Duffy,  brought under 28 U.S.C. § 2254. Id. at 3. The court interprets Mr. Decory's second claim against Rapid City Police Officer Glass as brought under 42 U.S.C. § 1983. Id. at 4. The court interprets Mr. Decory's third claim against Captain Brooke Haga as brought under 42 U.S.C. § 1983. Id. at 5. The court analyzes Mr. Decory's § 2254 claim and § 1983 claims separately.
1. Mr. Decory's 28 U.S.C. § 2254 Claim
Mr. Decory's § 2254 petition must be dismissed. Federal review of Mr. Decory's claim is premature because Mr. Decory failed to demonstrate that his state remedies have been exhausted or exceptional circumstances exist which warrant a waiver of the exhaustion requirement. See Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998); see also 28 U.S.C. § 2254(b)(1)(A).
South Dakota law provides Mr. Decory with an avenue for habeas corpus relief. See SDCL Chapter 21. South Dakota prisoners file their petitions first in the circuit court where their conviction occurred. SDCL § 21-27-14.1. The South Dakota Supreme Court reviews final state habeas judgments or orders upon the issuance of a certificate of probable cause by the circuit court. See SDCL § 21-27-18.1. If no certificate of probable cause is issued by the circuit court, the prisoner may file a separate motion with the South Dakota Supreme Court requesting the certificate directly from the Supreme Court. Id.
"As a general rule, a petitioner seeking a writ of habeas corpus under § 2254 must first exhaust his available state remedies." Sund v. Young, No. CIV. 14-4052-KES, 2014 WL 2506194, at *2 (D.S.D. June 3, 2014) (citing 28 U.S.C. § 2254(b)(1)(A)). "In other words, the 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). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." Id. at 844 (citing Rose v. Lundy, 455 U.S. 509, 515-16 (1982) (further citations omitted); see also Mellott v. Purkett, 63 F.3d 781, 784 (8th Cir. 1995). "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." Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971).
"The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court.'" Mellott, 63 F.3d at 784 (quoting Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992)). "A strong presumption exists [in favor of exhaustion] and the exhaustion requirement is waived only in rare cases where exceptional circumstances of peculiar urgency are shown to exist.'" Sund, 2014 WL 2506194, at *2 (quoting Mellott, 63 F.3d at 785). In Mellott, the United States Court of Appeals for the Eighth Circuit found the prisoner's assertion of a seventeen-month delay in state court was not a circumstance which warranted a waiver of the exhaustion requirement. Mellott, 63 F.3d at 785.
Mr. Decory bears the burden to show all available state remedies have been exhausted or that exceptional circumstances exist which warrant waiver of the exhaustion requirement. Carmichael, 163 F.3d at 1045. Mr. Decory failed to satisfy this burden. Mr. Decory propounded no evidence demonstrating his state remedies have been exhausted or even pursued. Based on Mr. Decory's complaint, the only document submitted for the court's review, the court is without a basis to ascertain the offense to which Mr. Decory pled guilty. Mr. Decory also failed to adduce any evidence that exceptional circumstances apply to his case which would warrant a waiver of the exhaustion requirement. Mr. Decory's federal habeas claim is premature and dismissal without prejudice is appropriate. Id.
The court takes this opportunity to advise Mr. Decory of the one-year limitation period which applies to § 2254 habeas corpus applications.
(d) (1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...