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Kurtenbach v. Dooley

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

September 21, 2016

MATTHEW C. KURTENBACH, Petitioner,
v.
ROBERT DOOLEY, Warden, Mike Durfee State Prison, Respondent.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Petitioner, 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).

         The 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.

         PETITIONER'S OBJECTIONS

         Mr. 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.

         1. DID KURTENBACH PROPERLY PRESENT HIS CONSTITUTIONAL CLAIMS TO THE STATE COURT VIA A STATE HABEAS CORPUS ACTION?

         The 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.

         Mr. 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 ...


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