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Landman v. Dooley

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

September 6, 2016

BURTON KENNETH LANDMAN, Petitioner,
v.
ROBERT DOOLEY, Chief Warden; and THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.

          Burton Kenneth Landman, Petitioner, Pro Se.

          Robert Dooley, Respondent, represented by Ann C. Meyer, Attorney General of South Dakota.

          The Attorney General of the State of South Dakota, Respondent, represented by Ann C. Meyer, Attorney General of South Dakota.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION

          KAREN E. SCHREIER, District Judge.

         INTRODUCTION

         Petitioner, Burton Kenneth Landman, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. The petition was assigned to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 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.

         FACTUAL BACKGROUND[1]

         On May 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 ¶¶ 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.

         On 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.

         On December 28, 2015, Landman filed this petition for writ of habeas corpus under 28 U.S.C. § 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.

         Defendants 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.

         STANDARD OF REVIEW

         The 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. 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. § 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. § 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         DISCUSSION

         Landman 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 ...


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