United States District Court, D. South Dakota, Southern Division
O’DELL K. JOHNSON, Petitioner,
ROBERT DOOLEY, DIRECTOR OF PRISONS, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
E. SCHREIER UNITED STATES DISTRICT JUDGE
O’Dell K. Johnson, filed a motion that the court
construed as a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254. Johnson failed to fill out and
return the standard § 2254 form necessary to evaluate
his claims. The matter was referred to Magistrate Judge
Veronica L. Duffy for a report and recommendation and she
recommended dismissing the petition. Petitioner then filed a
document that the court construes to be an objection to the
report and recommendation. For the following reasons, the
court adopts Magistrate Judge Duffy’s report.
1996, Johnson pleaded guilty to aggravated sexual abuse under
18 U.S.C. §§ 2241(c) and 1153. Johnson was
sentenced to 156 months imprisonment. United States v.
Johnson, 4:96-cr-40051-LLP, Docket 23. The crime was
committed at Kirton’s Trail Court in Wagner, South
Dakota. Id., Docket 26 at 1. Kirton’s Trail
Court is on land in Wagner, South Dakota, that is not held in
trust because it was ceded by the Yankton Sioux Tribe in
1894. Id. In 1998, the United States Supreme Court
ruled that ceded land within the Yankton Reservation was not
a part of “Indian Country, ” and therefore it was
under state, not federal, jurisdiction. South Dakota v.
Yankton Sioux Tribe, 522 U.S. 329, 358 (1998).
October 3, 2000, Johnson moved to vacate the 1996 federal
conviction because it occurred on land no longer considered
“Indian Country, ” and therefore, the federal
court did not have jurisdiction. O’Dell Johnson v.
United States of America, 4:00-cv-04015-LLP, Docket 1.
The court retroactively applied Yankton Sioux Tribe
and granted Johnson’s motion. Id., Docket 15.
Johnson was released from prison.
February 25, 2015, Johnson entered an Alford plea in state
court and was found guilty of third-degree rape in violation
of SDCL 22-22-1(4). Docket 1-2. The state court sentenced
Johnson to twenty-five years imprisonment with five years
suspended. Id. On December 28, 2015, Johnson sent a
pro se document to the Eighth Circuit Court of Appeals
entitled “Motion for Certificate of Appealability for
an Act of Congress, 1968, to be Unconstitutional by State of
South Dakota.” Docket 1. The Eighth Circuit forwarded
the document to this court. Docket 1-3. The court construed
this as a petition for writ of habeas corpus under 28 U.S.C.
December 28, 2015, the clerk of this court sent Johnson the
standard § 2254 form to return as soon as possible along
with the $5.00 filing fee. Docket 2. Johnson failed to return
the form or the filing fee. On March 24, 2016, Magistrate
Judge Duffy filed an order and directed the clerk to send
Johnson another § 2254 form and an in forma
pauperis packet. Docket 3. The court explicitly ordered
Johnson to return the forms no later than April 22, 2016, or
the “case would be dismissed for failure to
prosecute.” Docket 3 at 1-2 (emphasis added).
Johnson failed, again, to return the forms.
April 4, 2016, Johnson filed a Motion to Stay pending an
appeal to the Supreme Court of the United States for unclear
reasons, but his motion refers to an Act of Congress passed
in 1968. Docket 4 at 2. On April 5, 2016, Magistrate Judge
Duffy denied the motion to stay. Docket 5. Johnson then filed
a document entitled “Rebuttal to the Magistrate’s
Findings and Recommendations.” Docket 6. The argument
Johnson attempted to make in this document was also unclear.
That same day Magistrate Judge Duffy submitted her report,
recommending that this court dismiss Johnson’s petition
for failure to comply with the court’s order. Docket 7.
On May 18, 2016, Johnson filed a document entitled
“District Court’s Assumption of Jurisdiction
After a Lapse 47-Years, ” which this court construed to
be an objection to the report and recommendation. Docket 8.
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. Under 28 U.S.C.
§ 636(b)(1), the court reviews de novo any objections to
the magistrate judge’s recommendations with respect to
dispositive matters that are timely made and specific.
See Fed. R. Civ. P. 72(b). (“The district
judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected
to”). 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).
filings must be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). But,
a petitioner’s “pro se status does not entitle
him to disregard the Federal Rules of Civil Procedure.”
Carman v. Treat, F.3d 1379, 1381 (8th Cir. 1993)
(citing Kurkowski v. Volcker, 819 F.2d 201, 204 (8th
Cir. 1987)). Also, “[a] district court has power to
dismiss an action for refusal of the plaintiff to comply with
an order of court, Fed.R.Civ.P. 41(b), and such action may be
taken on the court’s own motion.” Burgs v.
Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (citing
M.S. v. Wermers, 557 F.2d 170, 175 (8th Cir. 1977)).
petitioner cannot pursue a habeas petition on an underlying
state court conviction without exhausting his claims in state
court first. 28 U.S.C. § 2254(b) and (c); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
If a petitioner does not exhaust his remedies in state court,
then he must show “cause and prejudice” or a
“fundamental miscarriage of justice” to qualify
for an exemption to exhaustion. Murray v. Carrier,
477 U.S. 478, 785 (1986) (quoting Engle v. Isaac,
456 U.S. 107, 135 (1982)). Johnson’s
completion of the § 2254 form is essential if this court
is to proceed further with Johnson’s claim. The form
includes inquiries such as whether the issues he raises have
been exhausted in state court [necessary for Johnson to
comply with 28 U.S.C. § 2254(b) and(c)]. Without such
information, the court cannot proceed with the claim because
Johnson has not shown that he has exhausted his remedies.
was first given notice that the § 2254 form needed to be
filled out and returned in a letter dated December 28, 2015.
See Docket 2 (A letter from the clerk of this court
that included a § 2254 form and requested that Johnson
“[p]lease complete and return  as soon as
possible.”) Later, on March 24, 2016, the court
formally ordered Johnson to fill out the § 2254 form or
“the case would be dismissed for failure to