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Anderson v. Young

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

August 16, 2016

DONALD LOREN ANDERSON, Petitioner,
v.
DARREN YOUNG, S.D. STATE PENITENTIARY, THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Petitioner, Donald Loren Anderson, is an inmate at the Mike Duffee State Prison in Springfield, South Dakota. On June 26, 2015, he filed a petition for writ of habeas corpus under to 28 U.S.C. § 2254. Docket 1. The petition was assigned to United States Magistrate Judge Veronica L. Duffy under to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings, including evidentiary hearings. Respondents move to dismiss for failure to state a claim upon which habeas relief may be granted. Magistrate Judge Duffy recommends dismissing the petition. Docket 17. Anderson objects to this recommendation. Docket 23. Anderson’s objections are overruled, the report and recommendation is adopted, and respondents’ motion is granted.

         FACTUAL BACKGROUND

         In December of 2011, Anderson was convicted of sexual contact with a child under the age of sixteen years in violation of SDCL 22-22-7, a class 3 felony. Docket 13-1. On direct appeal, Anderson raised the following issues: (1) whether his arraignment was inadequate; and (2) whether the trial court abused its discretion in denying his motion for a new trial because it failed to enter a specific finding that KH, the minor victim, was a competent witness. Docket 13-6. On May 8, 2013, the South Dakota Supreme Court affirmed Anderson’s conviction. State v. Anderson, 831 N.W.2d 54 (S.D. 2013).

         Anderson then filed a pro se, handwritten state habeas petition. The Honorable Arthur Rusch, Circuit Court Judge for the First Judicial Circuit, held a habeas hearing on December 16, 2013. Docket 13-13. In his petition, Anderson alleged two violations of his constitutional rights: (1) prosecutorial misconduct, and (2) ineffective assistance of counsel. Docket 13-9. Anderson’s appointed habeas counsel, Dava Wermers, explained that she and Anderson agreed to forego presenting evidence on Anderson’s prosecutorial misconduct claims. Docket 13-12 at 76-77. Judge Rusch indicated that he would review the jury trial transcript and independently determine whether any prosecutorial misconduct occurred. Id.

         During his state habeas hearing, Anderson alleged and presented evidence that his trial counsel, Phil Carlson, was ineffective by: (a) failing to investigate whether the recording of his interview had been tampered with; (b) failing to adequately impeach KH on cross-examination with inconsistencies between his trial testimony and the video statement he gave to authorities; (c) failing to call a medical professional to testify about the effects of Anderson’s erectile dysfunction; and (d) failing to call other children as character witnesses. See Docket 13-9. On December 22, 2013, Judge Rusch issued a Memorandum Opinion denying all of Anderson’s claims. Docket 13-13. Thereafter, on April 4, 2014, Judge Rusch denied Anderson’s motion for a certificate of probable cause. Docket 13-18.

         Through his appointed counsel, Anderson moved the South Dakota Supreme Court for a certificate of probable cause. Docket 13-17. Anderson requested that the South Dakota Supreme Court review the trial court’s denial of his prosecutorial misconduct and ineffective assistance of counsel claims. Id. On June 12, 2014, the South Dakota Supreme Court denied Anderson’s motion for certificate of probable cause. Docket 13-20.

         Anderson timely filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254. Anderson raises two claims: (1) prosecutorial misconduct; and (2) ineffective assistance of counsel. Docket 1. Attached to Anderson’s § 2254 petition is the original handwritten description of Anderson’s claims that were filed in state court. Id.

         As to the prosecutorial misconduct claim, Anderson alleges: (a) the prosecutor lied to the jury when he told them Anderson “massaged” KH’s penis for sexual gratification; (b) the prosecutor told the jury that Anderson lied about his erectile dysfunction; (c) the prosecutor told the judge that Anderson was a “world traveler” to persuade the judge to imprison Anderson; (d) the prosecutor used tampered evidence (the audio compact disc that contains the interview with Anderson); and (e) the prosecutor corrupted KH by telling him what to say. Id. Magistrate Judge Duffy recommends dismissal of Anderson’s prosecutorial misconduct claims (c), (d), and (e) because Anderson procedurally defaulted on those claims and failed to show cause for the procedural default. Docket 17 at 33. Magistrate Judge Duffy also recommends that procedural misconduct claims (a) and (b) be dismissed as meritless because the prosecutor did not make any improper remarks to the jury in closing arguments. Docket 17 at 34-36.

         As to the ineffective assistance of counsel claim, Anderson asserts counsel was ineffective by: (a) failing to object to KH’s testimony and failing to impeach KH’s truthfulness; (b) failing to interview a particular detective about statements made by KH; (c) failing to test the CD of Anderson’s recorded interview for evidence of tampering; (d) failing to introduce medical evidence regarding Anderson’s erectile dysfunction; (e) failing to introduce the videotaped interview of the minor victim; (f) failing to object to the prosecutor’s statements about sexual gratification; (g) failing to allow Anderson to see or read the psychosexual evaluation before sentencing; (h) failing to call other children as character witnesses; and (i) charging too much money. Docket 1.

         Magistrate Judge Duffy recommends that the court dismiss Anderson’s ineffective assistance of counsel claims (a), (b), (e), (f), (g), and (i) as procedurally defaulted. Docket 17 at 22-33. Magistrate Judge Duffy recommends that the court dismiss claims (c), (d), and (h) as meritless. Id. at 36-47. First, Magistrate Judge Duffy recommends finding that Anderson’s counsel was not ineffective for failing to test the CD interview for tampering because the CD did not contain any irregularities that would indicate tampering. Id. at 40-41. Also, she states that, even if parts of the recording were deleted, the alleged contents of those parts would not have been sufficient to grant habeas relief. Id. Second, Magistrate Judge Duffy recommends finding that Anderson’s counsel was not ineffective for failing to introduce evidence of Anderson’s erectile dysfunction because this evidence would have been unhelpful to Anderson’s case. Id. at 42-44. Finally, Magistrate Judge Duffy recommends finding that Anderson’s counsel was not ineffective for failing to call other children as character witnesses because such testimony would have opened the door for the prosecution to present its own negative character witnesses. Id. at 44-47.

         Respondents now move to dismiss Anderson’s § 2254 petition pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2254. Docket 14. Anderson moves for summary judgment. Docket 11; Docket 16. Magistrate Judge Duffy recommends that respondents’ motion to dismiss be granted, that Anderson’s motions for summary judgment be denied, and that his habeas petition be dismissed with prejudice. Docket 17 at 47.

         On May 25, 2016, Anderson timely filed objections to the Report and Recommendation. In his objection, Anderson alleges (1) prosecutorial misconduct, and (2) ineffective assistance of counsel. Docket 23. As to prosecutorial misconduct, Anderson alleges that the prosecutor coerced KH at trial. Id. As to the ineffective assistance of counsel, Anderson alleges that his trial counsel failed to check a file that was presented to the jury, which resulted in the jury receiving inadmissible evidence. Id. Anderson also alleges that his appointed state habeas counsel was ineffective at his state habeas hearing because she failed to present evidence of prosecutorial misconduct regarding the inadmissible files. Id.

         LEGAL ...


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