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Sund v. Young

United States District Court, D. South Dakota, Western Division

July 13, 2015

DENNIS RAY SUND, Petitioner,
DARIN YOUNG, Warden, South Dakota State Penitentiary, ED LIGTENBERG, Executive Director, Board of Pardons and Paroles, and MARTY J. JACKLEY, Attorney General of the State of South Dakota, Respondents.


KAREN E. SCHREIER, District Judge.

Petitioner, Dennis Ray Sund, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 asserting claims for ineffective assistance of counsel, among others. The petition was assigned to United States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings, including evidentiary hearings. On February 4, 2015, Magistrate Judge Duffy submitted her Report and Recommendation for disposition of this case to the court. Petitioner filed his objection to the report and recommendation on February 20, 2015. Respondents have not objected to the report. For the following reasons, the court adopts Magistrate Judge Duffy's report as modified by this opinion.


On November 17, 2002, Sund was arrested for driving under the influence in Spink County, South Dakota. See Supreme Ct. File 26702 at 12, 17. Sund was released on bond on November 22, 2002, with conditions to appear at all hearings and to keep in contact with his attorney. See id. at 17 (affidavit of Spink County State's Attorney). Sund then failed to make his court appearances and did not keep in contact with his attorney. See id. On February 11, 2003, Spink County Judge Larry Lovrien issued a bench warrant for Sund's arrest pertaining to his DUI charge. Id. at 19. On February 26, 2003, the Spink County Court issued a warrant for Sund's arrest for failure to appear after release. Supreme Ct. File 26703 at 2. Sund was located and arrested in February 2013.

On April 24, 2013, Sund pleaded guilty to felony charges of driving under the influence (fourth offense) and failure to appear. He was sentenced to five years in prison on the DUI with two years suspended and two years in prison on the felony failure to appear. Both sentences were to be served concurrently. Sund filed an appeal to the South Dakota Supreme Court on August 22, 2013. On January 21, 2014, the South Dakota Supreme Court affirmed his conviction. No petition for certiorari was filed with the United States Supreme Court.

Sund then filed a notice of appeal with this court on April 7, 2014. See 4:14-cv-04052-KES (Docket 1). This court construed the notice of appeal to be a petition for writ of habeas corpus. 4:14-cv-04052-KES (Docket 5). The matter was referred to Magistrate Judge John Simko, who reviewed the petition and recommended dismissal because Sund failed to exhaust his state remedies. No objection was filed, and this court adopted the report.

Sund was released from state custody on parole on May 2, 2014. Thereafter, Sund filed a petition for writ of habeas corpus in state court on June 4, 2014. In his petition, Sund requested appointment of counsel. The State of South Dakota responded arguing that Sund had been paroled and therefore was not entitled to a writ of habeas corpus under South Dakota law. Sund replied that he was in custody because he was still on "probation [sic]." Additionally, he requested the court to issue a certificate of probable cause and appoint an attorney to assist him. Petition for Writ of Habeas Corpus at 2-3, Sund v. Young, CIV 14-49 (Spink County Ct. June 6, 2014). No counsel was appointed to represent Sund in the state habeas proceeding. On September 30, 2014, State Circuit Court Judge Scott Myren denied Sund's request for a writ of habeas corpus. An order denying Sund's petition was filed on October 7, 2014. No notice of entry of this order appears in the state court record. Sund did not seek a certificate of probable cause from the South Dakota Supreme Court, and did not appeal the decision.

Sund then filed this pro se petition for writ of habeas corpus in federal court on October 16, 2014. The petition was referred to Magistrate Judge Duffy, who recommends denial of the petition.


The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). In conducting its de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

A. Procedural Default

Magistrate Judge Duffy concluded that all of Sund's claims were barred from federal review due to procedural default and that he could not show adequate cause to overcome the default. Before seeking federal relief under 28 U.S.C. § 2254, a petitioner must "fairly present" the claim to the state courts. Murphy v. King, 652 F.3d 845, 848 (8th Cir. 2011) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004); 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.")). As a rule, a federal court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991)). This rule applies to bar federal habeas petitions "when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30. The requirement that prisoners first exhaust their claims in state court "protect[s] the state courts' role in the enforcement of federal law and prevent[s] disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982). "[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." Coleman, 501 U.S. 732. "The bar to federal review may be lifted, however, if the prisoner can demonstrate cause for the procedural default in state court and actual prejudice as a result of the alleged violation of federal law." Maples v. Thomas, 132 S.Ct. 912, 922 (2012) (quotations omitted).

Under the South Dakota state habeas statutory scheme, a prisoner must be in physical custody for habeas relief to be available. Bostick v. Weber, 692 N.W.2d 517, 519-21 (S.D. 2005); SDCL 21-27-1 (stating that habeas relief is available to "any person committed or detained, imprisoned or restrained of his liberty, under any color or pretense whatever...."). Parole does not qualify as physical custody. Bostick, 692 N.W.2d at 521. State Circuit Judge Myren rejected Sund's habeas claims on procedural grounds because the petition was not timely filed prior to when Sund was paroled. The decision to reject Sund's petition rests on adequate and independent state grounds under ...

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