United States District Court, D. South Dakota, Western Division
ALEXANDER J. SALWAY, Petitioner,
WARDEN DOOLEY, and MARTY JACKLEY, Respondents.
JEFFREY L. VIKEN CHIEF JUDGE
Petitioner Alexander Salway, an inmate at the Mike Durfee State Prison in Springfield, South Dakota, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket 1). The respondents filed an answer requesting the petition be dismissed. (Docket 6 at p. 12). Mr. Salway filed a rebuttal to the respondents’ answer. (Docket 7). Pursuant to a standing order of March 18, 2010, and 28 U.S.C. § 636(b)(I)(B), the matter was referred to United States Magistrate Judge John E. Simko. Judge Simko issued a report recommending the court grant the respondents’ request for dismissal. (Docket 9). Respondents did not object to the report and recommendation. After receiving an extension from the court, Mr. Salway filed objections to the report and recommendation. (Docket 13).
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. Salway’s objections are overruled and the report and recommendation is adopted as amended.
Mr. Salway did not object to the factual and procedural background outlined by the magistrate judge. The court adopts the magistrate judge’s factual and procedural background. (Docket 9 at pp. 2-7). Mr. Salway entered a guilty plea to count 2 of the superseding indictment charging him with aggravated assault. Id. at 3; see also Docket 7-1 at pp. 2-3. The state court judge sentenced Mr. Salway to fifteen years in the South Dakota State Penitentiary. (Docket 9 at p. 5); see also Docket 7-2 at p. 3. The only issue Mr. Salway raised on direct appeal was whether his sentence should be vacated and his case remanded for re-sentencing in light of the state’s material breach of the plea agreement by speaking at his sentencing hearing. (Docket 9 at p. 6). The South Dakota Supreme Court summarily affirmed Mr. Salway’s conviction. Id.; see also Docket 1-2. Judge Jeff Davis dismissed Mr. Salway’s state habeas petition and denied a certificate of probable cause. (Docket 9 at p. 6). Mr. Salway did not request a certificate of probable cause from the South Dakota Supreme Court. Id.
Mr. Salway filed four objections to the magistrate judge’s report and recommendation. (Docket 13). The court summarizes the objections as follows:
1. There is no evidence that the victim suffered permanent damage or substantial injury and the victim was only struck once in the left eye, which contradicts what was told to the grand jury and the trial court;
2. There is no professional medical opinion or diagnosis to support any of the serious injuries claimed by the victim;
3. There is no expert medical opinion or any evidence to support the claims that the victim was permanently injured or would require surgery, and the prosecution fabricated the victim’s injuries; and
4. The violation of Mr. Salway’s Fifth, Sixth and Fourteenth Amendment rights is demonstrated by the prosecution’s breach of the plea agreement and his attorney’s failure to object to this breach.
Id. Mr. Salway’s objections, liberally construed, also request court appointed counsel to review the medical records in the case. Id. at 3.
I. Severity of the Victim’s Injuries
Because Mr. Salway’s first three objections all relate to the extent of injuries suffered by the victim in his underlying criminal case, the court addresses all three at once.
Mr. Salway’s claims challenging the severity of the victim’s injuries are procedurally defaulted. As the magistrate judge demonstrated, the only issue Mr. Salway properly exhausted at the state level is the issue of whether he is entitled to re-sentencing as a result of the prosecution speaking at his sentencing hearing. (Docket 9 at p. 13). Furthermore, as the magistrate judge noted “[t]he medical evidence regarding the extent of the victim’s injuries was in the record or at least available before [Mr.] Salway pled guilty to aggravated assault.” Id. Thus, Mr. Salway’s claims challenging the severity of the victim’s injuries, like his other claims, are procedurally defaulted, and his assertions regarding the extent ...