United States District Court, D. South Dakota, Western Division
Kenneth Landman, Petitioner, Pro Se.
Dooley, Respondent, represented by Ann C. Meyer, Attorney
General of South Dakota.
Attorney General of the State of South Dakota, Respondent,
represented by Ann C. Meyer, Attorney General of South
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER, District Judge.
Burton Kenneth Landman, filed a pro se petition for writ of
habeas corpus under 28 U.S.C. Â§ 2254. The petition was
assigned to United States Magistrate Judge Veronica L. Duffy
under 28 U.S.C. Â§ 636(b)(1)(B) and this court's October
16, 2014, standing order. On July 14, 2016, Magistrate Judge
Duffy submitted her report and recommendation for disposition
of this case to the court. Landman timely filed his objection
on August 23, 2016. For the following reasons, the court
adopts Magistrate Judge Duffy's report and recommendation
and dismisses Landman's petition.
9, 1997, Landman pleaded guilty to four counts of sexual
contact with a minor. Docket 6-3. Landman directed his trial
counsel to file an appeal, but trial counsel refused. Docket
1-4 Â¶Â¶ 5-6. In May of 1998, Landman twice requested a
modification of his sentences, seeking to have them run
concurrently instead of consecutively, but both requests were
denied. See Pennington County CR 95-5632 Docket 54,
55, and 56. Landman filed a pro se state habeas petition in
2000. Docket 6-4.
February 6, 2015, Landman filed a "motion to vacate
judgment; and reimpose same judgment." Docket 6-11. He
argued that he was entitled to habeas relief under
McBride v. Weber, 763 N.W.2d 527 (S.D. 2009). Docket
6-11. He sought restoration of his right to a direct appeal.
Id. The state court denied this motion. Docket 6-12.
On July 7, 2015, Landman sought essentially the same relief
under SDCL 23A-27-51 in a "motion to reimpose
judgment." Docket 6-17. The state court denied this
motion as well. Docket 6-18.
December 28, 2015, Landman filed this petition for writ of
habeas corpus under 28 U.S.C. Â§ 2254. Docket 1. He argued
that the state court's denial of his motions seeking
restoration of his right to a direct appeal violated his
rights under the Due Process Clause. Id.
move to dismiss Landman's petition, arguing that it is
time-barred and there are no grounds for equitable tolling.
Docket 5 at 1-2. Magistrate Judge Duffy recommends granting
defendants' motion to dismiss and dismissal of
Landman's petition. Docket 12. Landman timely filed
objections to the report and recommendation. Docket 15. On
August 31, 2016, Landman filed what he called a memorandum in
support of his objections. Docket 16. This document contains
additional objections not raised in his previous filing.
court's review of a Magistrate Judge's report and
recommendation is governed by 28 U.S.C. Â§ 636 and Rule 72 of
the Federal Rules of Civil Procedure. The court reviews de
novo any objections to the magistrate judge's
recommendations with respect to dispositive matters that are
timely made and specific. 28 U.S.C. Â§ 636(b)(1)(B);
Fed.R.Civ.P. 72(b). 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. Â§ 636(b)(1); United
States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
raises three objections to Magistrate Judge Duffy's
report and recommendation. Docket 15. His first two
objections concern alleged factual inaccuracies in the report
and recommendation. Id. at 3. His third objection
concerns the applicability of 28 ...