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Vice v. Dooley

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

September 29, 2015

DEREK VICE, Plaintiff,
BOB DOOLEY, Warden, and MARTY JACKLEY, Attorney General of the State of South Dakota, Defendants.


JEFFREY L. VIKEN, Chief Judge.

On October 23, 2014, petitioner Derek Vice, an inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket 1). On December 5, 2014, the defendants moved to dismiss the petition. (Docket 11). Mr. Vice opposed the motion. (Docket 16). Pursuant to a standing order of October 14, 2014, the matter was referred to United States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). On June 3, 2015, Judge Duffy issued a report recommending the court grant the defendants' motion to dismiss. (Docket 27). Pursuant to 28 U.S.C. § 636(b)(1), objections to the report and recommendation were due on or before June 24, 2015. On June 17, 2015, Mr. Vice filed a request for a hearing on the petition. (Docket 28). On September 1, 2015, the court learned the report and recommendation had not been mailed to Mr. Vice. (Docket 31). A new deadline of September 21, 2015, was set for filing objections. Id . Mr. Vice timely filed his objections. (Docket 33). As part of his submission, Mr. Vice asked for leave of the court to file an affidavit from Stewart Martin, an individual Mr. Vice believes is critical to his objections. (Docket 33-1 at p. 1). As of the date of this order Mr. Martin's affidavit has not been filed.

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)(1). 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. Vice's objections are overruled and the report and recommendation is adopted in full.


Following a jury trial in August 2012 in the Seventh Judicial Circuit Court for the State of South Dakota, Mr. Vice was convicted of count 1: distribution of a controlled substance, methamphetamine; and count 2: possession of a controlled substance, methamphetamine. (Docket 12-1 at pp. 1-2). Following the verdict, Mr. Vice admitted to being a habitual offender under South Dakota law. Id. at pp. 2-3. The state court judge sentenced Mr. Vice to twenty-five years imprisonment on each count, with the sentences to be served concurrently. Id. at pp. 3-5.

Before addressing Mr. Vice's objections, the court adopts the procedural history outlined in the report and recommendation. (Docket 27 at pp. 2-7). Without reciting that procedural history, it is important to note that the only issues presented in Mr. Vice's petition for relief were: (1) "his constitutional right to a fair trial was violated because [Detective] Andy Becker presented false testimony to the grand jury"; and (2) "Det. Becker's grand jury testimony is newly [discovered] evidence." Id. at p. 7 (referencing Docket 1 at pp. 4-5). The magistrate judge found these claims were "clearly exhausted at the state level." Id. at p. 13. The report recommends dismissal of Mr. Vice's petition "for procedural default." Id. at p. 22.

Mr. Vice filed seven objections to the report and recommendation of the magistrate judge. (Docket 33). His objections are summarized and reorganized for analysis purposes as follows:

1. The magistrate judge erred in concluding Mr. Vice failed to show cause for his procedural default in the state court action;
2. Mr. Vice has shown cause which the South Dakota Supreme Court should have considered;
3. A detective lied to the grand jury;
4. The state prevented Mr. Vice from presenting witnesses at the state court jury trial;
5. Mr. Vice's fingerprints were not on the drug container given to the undercover informant;
6. A confidential informant lied when he identified Mr. Vice as the driver of a truck; and
7. Mr. Vice claims to be actually innocent of the state court offenses.


The magistrate judge properly identified and analyzed Mr. Vice's petition under the law of procedural default. (Docket 27 at pp. 14-17). Following that analysis, the magistrate judge concluded "[b]ecause the last reasoned state court opinion dealing with Mr. Vice's habeas claims did not address their merits but rejected them on procedural grounds, this Court is precluded from reviewing them." Id. at p. 17 (referencing Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.") and Wiegers v. Weber, 37 Fed.Appx. 218, 219-20 (8th Cir. 2002) (unpublished) (prisoner's failure to timely appeal denial of state habeas resulted in denying South Dakota an "opportunity to decide the... claim on the merits because Wiegers failed to present the claim to the state court in a timely or procedurally correct manner.").

The court will address Mr. Vice's objections in a manner deemed most efficient and appropriate based on the federal petition.


Mr. Vice alleges the reason he defaulted in state court was because the prison legal aide, Mr. Bidne, failed to provide proper advice. (Docket 33) (referencing Docket 33-2 at p. 1). Addressing the denial of a certificate of probable cause by the South Dakota Supreme Court, Mr. Bidne states "[i]t is my understanding that your [certificate of probable cause] was denied due to the fact that you did not send copies of it to the Attorney General [or] the appropriate State's Attorney. I apologize that there was a miscommunication between this office and yourself. Somehow it was overlooked that you did not have enough copies to send to all of the necessary parties and thus your [certificate of probable cause] was denied. Please understand that it was not intentional, but there was definitely a miscommunication." (Docket 33-2 at p. 1). Mr. Vice uses this miscommunication claiming an "objective factor external to [petitioner] impeded [his] efforts" to present his issues to the state court. (Docket 33) (referencing Docket 27 at p. 18 ("The habeas petitioner must show that "some objective factor external to [petitioner] impeded [his] efforts.") (quoting Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (internal citation omitted)).

Mr. Bidne's miscommunication is not relevant to the court's analysis. The South Dakota Supreme Court specifically addressed the notice issue in the order denying Mr. Vice's motion for a certificate of probable cause.

[T]he Court by order of August 20, 2014, entered an order to show cause on the grounds that 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 submitted... and [Mr. Vice] having served and filed a showing and [Warden Dooley] having served and filed a response thereto and the court having considered the motion, showin[g] and response... ORDERED that the motion for certificate of probable cause be and it is hereby denied.

Docket 12-17).

The South Dakota Supreme Court did not deny Mr. Vice's motion for a certificate of probable cause solely because of the notice issue. It is evident the court concluded that no "appealable issue exists." SDCL § 21-27-18.1.

Mr. Vice failed to show "cause" for the procedural default in the state court habeas proceedings. This ruling also resolves objection number two for the same reasons. ...

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