United States District Court, D. South Dakota, Western Division
MATTHEW C. KURTENBACH, Petitioner,
ROBERT DOOLEY, Warden, Mike Durfee State Prison, Respondent.
JEFFREY L. VIKEN CHIEF JUDGE
Matthew Kurtenbach, while an inmate at the Mike Durfee State
Prison in Springfield, South Dakota, filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Docket 1). Pursuant to a standing order of
October 16, 2014, the matter was referred to United States
Magistrate Judge Veronica L. Duffy under 28 U.S.C. §
636(b)(1)(B). On September 22, 2015, the respondent filed a
motion to dismiss Mr. Kurtenbach's petition. (Docket 9).
On July 28, 2016, Judge Duffy issued a report recommending
the court dismiss Mr. Kurtenbach's habeas petition with
prejudice. (Docket 17 at p. 27). Mr. Kurtenbach timely filed
his objections. (Docket 18).
court reviews de novo those portions of the report
and recommendation which are the subject of objections.
Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir.
1990); 28 U.S.C. § 636(b)(1). The 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). Mr.
Kurtenbach's objections are overruled and the report and
recommendation is adopted in full.
Kurtenbach's objections to the report and recommendation
are as follows:
1. Did Kurtenbach properly present his constitutional claims
to the State Court via a state habeas corpus action?
2. Did the only state court decision that has addressed
Kurtenbach's situation support [his] position?
3. Did the Respondent raise procedural default in the State
Court and should the respondent be stopped from arguing it
for the first time in Federal Court?
4. Did Kurtenbach properly present his constitutional claims
to the State Court so that he has not procedurally defaulted?
(Docket 18). Each objection will be separate analyzed.
KURTENBACH PROPERLY PRESENT HIS CONSTITUTIONAL CLAIMS TO THE
STATE COURT VIA A STATE HABEAS CORPUS ACTION?
magistrate judge concluded Mr. Kurtenbach was not challenging
the judgment of conviction in Pennington County case CR
09-472, but rather he was appealing from the 2015 decision of
the Board of Pardons and Paroles to revoke parole and impose
a previously suspended sentence in that case. (Docket 17 at
pp. 17-18). Mr. Kurtenbach did not file an objection to the
conclusion of the magistrate judge.
Kurtenbach's objection claims the magistrate judge erred
in concluding that SDCL Chap. 1-26 provided the exclusive
remedy to address his claim in state court. (Docket 18 at p.
3). Mr. Kurtenbach frames the question as: “[D]oes
South Dakota's habeas corpus remedy allow an individual
to challenge a decision of the South Dakota Board of Pardons
and Paroles via a habeas corpus action?” Id.
at p. 2. He argues there are coexisting, alternative sources
through which his claim could be ...