United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING MOTION TO DISMISS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
David Dowty has filed a § 2254 petition challenging his
state court convictions as being obtained in violation of his
constitutional rights. Doc. 1. Dowty is currently a prisoner in
the custody of the Federal Bureau of Prisons. Dowty pleaded
guilty to Felon in Possession of a Firearm, United States
v. Dowty, CR-11-30026, Doc. 26, and was sentenced to ten
years in federal custody by this Court on August 16, 2011,
Dowty, CR-11-30026, Doc. 38. The United States Court
of Appeals for the Eighth Circuit dismissed Dowty's
appeal, Dowty, CR-11-30026, Doc. 52, because Dowty
had knowingly waived appeal rights. Dowty filed a motion to
vacate his federal court conviction, which has been denied.
Dowty v. United States, CV-13-3022, Doc. 24. Both
this Court and the Eighth Circuit denied Dowty a certificate
of appeal ability. Dowty, CV-13-3022, Docs. 24, 34.
firearm to which Dowty admitted possession in his federal
felony conviction was one of the firearms stolen in the
burglaries for which he was convicted in a South Dakota state
court. Dowty, CR-11-30026, Doc. 24. Dowty's
federal sentence is being served concurrently with a
forty-five-year sentence imposed upon Dowty by the Circuit
Court for the Sixth Judicial Circuit of South Dakota.
Dowty v. B.O.P. et al.. CV-13-3032, Doc. 14-1 at 4;
Doc. 14-2 at 4; Doc. 14-3 at 4.
circumstances surrounding Dowty's state court convictions
were summarized by the South Dakota Supreme Court in its
opinion affirming Dowty's state convictions:
During a 25-day period in October and November 2010, three
homes were burglarized in rural Mellette County. The homes
were located within 20 miles of each other. The first
burglary occurred on October 30, 2010. Upon returning home at
approximately 12:30 a.m. on October 31, 2010, Peter and Maria
Ferguson realized their home had been burglarized. Several
items were missing from the Ferguson home, including two
televisions, two jewelry boxes, three guns, Maria's work
bag, and all the meat from their freezer. The Fergusons
reported the burglary to the Mellette County Sheriffs Office,
which initiated an investigation.
On November 6, 2010, Jeannine Woodward and Rose West left
their home around 9:00 a.m. When Woodward and West returned
home at approximately 4:00 p.m., they discovered that several
items were missing from the freezer and that seven guns had
been stolen. Outside, Woodward and West noticed blood
trailing from the driveway to the front door. However, there
was no blood inside their home. During the investigation of
the burglary, the Mellette County Sheriffs Department
collected a sample of the blood from the front door for DNA
testing. At that time, no suspects were identified for either
The next burglary occurred on November 24, 2010. At
approximately 7:00 p.m., Michael Williams returned home after
having dinner with his family at a co-worker's house.
Williams's wife and children had a separate vehicle, arid
planned to return home sometime after Williams. Upon entering
his home, Williams immediately saw two men he did not
recognize. One of the two men was rifling through the
freezer, while the other man was attempting to remove the
television from the wall. The man by the freezer turned
around and pointed a handgun at Williams. Subsequently,
Williams saw the man by the television reach into his coat
pocket. Williams then saw a laser beam flash across the wall.
Williams closed the front door and started running away from
the house. While Williams was running, he saw the laser beam
shining near him on the ground and was then shot twice in the
leg. Despite his injuries, Williams was able to access the
handgun he carried with him and fire one shot in the air.
Williams then called 911 on his cell phone. The two men fled
the scene while Williams waited for help. Once law
enforcement arrived, Williams was transported to the hospital
for treatment. He eventually recovered from his injuries.
Items stolen from Williams's home included the handgun
with the laser sight, a second handgun, jewelry, coins, and a
After Williams was transported to the hospital, law
enforcement began investigating the burglary and shooting.
Agent Jason Jares, a law enforcement officer employed by the
South Dakota Division of Criminal Investigations (DCI), led
the investigation. One of the items recovered from the scene
was a partially smoked cigarette butt that had been found
near the deck outside of the home. The cigarette butt was
sent to the DCI forensic lab for DNA testing.
As the investigation progressed, Earl Dowty and his stepson,
Wayne Richards, became the primary suspects in the burglary
and shooting that took place at Williams's home.
Specifically, Dowty was suspected of being the individual
Williams observed standing at the freezer. Richards was
suspected of being the individual Williams observed
attempting to remove the television from the wall, who shot
Williams as Williams ran away from the house. Both Dowty and
Richards lived with Dowty's wife (Richards's mother),
Rose Leading Fighter, at her home in Parmelee, South Dakota,
which is located within an Indian reservation. Because the
home was located on reservation land, Agent Jares sought
assistance with the investigation from a Federal Bureau of
Investigation (FBI) agent. The FBI agent obtained a federal
search warrant for Leading Fighter's home that permitted
law enforcement to search for items stolen from
The search warrant was executed on January 8, 2011. During
the execution of the search warrant, law enforcement did not
locate any of the items that had been stolen from
Williams's home. Nevertheless, while searching the home,
law enforcement discovered a tan cloth bag with a buffalo
skull imprinted on the side. The bag contained various items
including documents with the name "Maria Ferguson"
on them, a wallet, and a jewelry box. Leading Fighter
consented to law enforcement taking possession of the bag and
Before executing the search warrant, Agent Jares was unaware
of the burglaries of the Ferguson and Woodward/West homes.
However, Agent Jares was informed of these two burglaries
after recovering the bag containing the documents with Maria
Ferguson's name. Upon learning of these unsolved
burglaries, law enforcement realized that some of the items
they had seen in plain view while executing the search
warrant at Leading Fighter's home were consistent with
items that had been stolen from the Ferguson home.
Ultimately, Leading Fighter consented to law enforcement
taking custody of a jewelry box and a television that had
been stolen from the Ferguson home.
As investigations of the three burglaries continued, law
enforcement obtained additional evidence that connected Dowty
and Richards to the burglaries. For example, law enforcement
discovered Dowry and Richards had traded and pawned various
guns that had been stolen during the burglaries of the
Ferguson, Woodward/West, and Williams homes. Specifically, on
November 23, 2010, Richards pawned a rifle that had been
stolen from the Woodward/West home. Dowty was with Richards
at the time, but Dowty remained outside the pawn shop in a
vehicle. The next day, Dowty pawned a rifle that had also
been stolen from the Woodward/West home. Richards was in the
pawn shop with Dowty at the time Dowty pawned the rifle.
Furthermore, on two separate occasions during fall 2010,
Dowty traded stolen guns to Jason Little Elk in exchange for
Little Elk performing repair work on Dowty's vehicle. The
first gun Dowty traded Little Elk was a rifle that had been
stolen from the ...