United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
Petitioner Kent Hazelrigg is in the custody of the Federal Bureau of Prisons and is currently residing at the Community Alternatives of the Black Hills in Rapid City, South Dakota. Mr. Hazelrigg filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Docket 1). The government moved to dismiss the petition. (Docket 35). Mr. Hazelrigg opposed the motion. (Docket 51). Pursuant to a standing order of March 18, 2010, the matter was referred to United States Magistrate Judge John E. Simko in accord with 28 U.S.C. § 636(b)(1)(B). Judge Simko issued a report recommending the court grant the government's motion to dismiss and that Mr. Hazelrigg's petition be denied with prejudice, without a hearing, and that no certificate of appealability be issued. (Docket 60). The court granted Mr. Hazelrigg multiple extensions to file objections to the report and recommendation. (Dockets 62, 64, 69, 74 & 77). On February 3, 2015, Mr. Hazelrigg filed his objections. (Docket 78). The government did not file any objections. For the reasons stated below, Mr. Hazelrigg's objections are overruled and the report and recommendation is adopted.
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The 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).
Mr. Hazelrigg objects to the report and recommendation. The objections are best organized under the following titles:
1. Procedural default;
2. Trial strategy;
3. Failure to edit the audio tape;
4. Inability to confront accusers;
5. Prosecutorial misconduct and misstatement of evidence;
6. Inaccurate information at sentencing;
7. Use of perjured testimony and improper cross-examination; and
8. Miscellaneous objections
(Docket 78). Each category of petitioner's objections is separately addressed.
1. Procedural Default
Without duplicating the magistrate judge's analysis regarding the "cause and prejudice" exception to a procedurally defaulted claim (Docket 60 at pp. 4, 13-16), the court notes a defendant can raise a procedurally defaulted claim in a habeas petition "only if [he] can first demonstrate either cause' and actual prejudice'... or that he is actually innocent.'" Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). Mr. Hazelrigg, without referencing a specific claim, asserts "[i]neffective assistance of counsel is sufficient to establish the cause and prejudice necessary to overcome a procedural default." (Docket 78 at p. 3). The court agrees with this general proposition.
If a procedural default is the result of ineffective assistance of trial or direct appeal counsel, in a matter external to the defense and imputed to the state, the Sixth Amendment requires that the default be excused.... In such an instance, constitutionally deficient performance of appellate counsel is cause' to forgive a procedural default.
Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986), superseded by statute on other grounds (Antiterrorism and Effective Death Penalty Act of 1996)).
However, the Supreme Court also determined "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray, 477 U.S. at 486. The Court went on to articulate:
So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, ] 466 U.S. 668 (1984) ]... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel... or that some interference by officials made compliance impracticable would constitute cause under this standard.
Murray, 477 U.S. at 488 (internal quotation marks and citations omitted) (emphasis added).
Mr. Hazelrigg did not bring an ineffective assistance of counsel claim against his appellate counsel only his trial counsel, Terry Pechota. (Docket 78 at p. 3). The court finds Mr. Pechota's representation not to be constitutionally ineffective. See infra. Mr. Hazelrigg failed to show an objective factor external to his defense prevented him from raising the applicable issues on appeal. In short, the court concurs with the magistrate judge's analysis on issues related to ...