United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING
PETITION, AND APPEALABILITY IN PART
E. SCHREIER UNITED STATES DISTRICT JUDGE
Steven Allen Brende, filed a pro se petition for writ of
habeas corpus under 28 U.S.C. § 2254. Docket 1. In his
petition, Brende seeks habeas relief on four grounds.
Id. 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 18, 2016, respondents moved to dismiss
Brende's petition. Docket 17. Respondents argued that
Brende failed to exhaust his claims and failed to state a
claim upon which habeas relief could be granted. Id.
September 19, 2016, Magistrate Judge Duffy filed a report and
recommendation that recommended dismissal with prejudice of
all of Brende's habeas claims. Docket 29. In her report
and recommendation, Magistrate Judge Duffy recommends that
Grounds I, III, and IV of the petition be dismissed because
Brende failed to raise these grounds before the South Dakota
Supreme Court in his appeal from the denial of his state
habeas petition. Id. at 13. Therefore, Magistrate
Judge Duffy recommends that these claims be found
procedurally defaulted, and because Brende failed to
establish cause and prejudice to excuse this default,
Magistrate Judge Duffy recommends these claims be dismissed.
Id. at 17. Magistrate Judge Duffy recommends that
Ground II of Brende's petition be dismissed because the
South Dakota Supreme Court's decision that there was
constitutionally sufficient evidence to sustain Brende's
first-degree rape conviction was not an unreasonable finding
of fact or application of federal law. Id. at 33.
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.
did not file objections to Magistrate Judge Duffy's
report and recommendation. Although he has filed many
motions, none of his filings can be construed as objections
because none of them respond to Magistrate Judge Duffy's
recommendations as outlined above. After de novo review of
the record, the court adopts the report and recommendation in
full and dismisses Brende's petition.
filings, Brende makes numerous requests to appeal the
potential dismissal of his petition. “[A] state
prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition.” Miller-El v. Cockrell, 537 U.S.
322, 335 (2003) (citing 28 U.S.C. § 2253). “Before
an appeal may be entertained, a prisoner who was denied
habeas relief in the district court must first seek and
obtain a COA from a circuit justice or judge.”
Id. at 335-36. A certificate may be issued
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(2). A “substantial showing” is one
that demonstrates “reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
court finds that Brende fails to make a substantial showing
that his constitutional rights were denied as to Grounds I,
III, and IV because these claims are procedurally defaulted.
Consequently, a certificate of appealability is not issued as
to these claims. But, as outlined in detail by Magistrate
Judge Duffy, reasonable jurists could disagree with the
finding that Brende failed to state a claim that there was
insufficient evidence to sustain his first-degree rape
conviction as raised in Ground II. Therefore, a certificate
of appealability is issued as to this claim.
it is ORDERED
Magistrate Judge Duffy's report and recommendation
(Docket 29) is adopted in full.
Respondents' motion to dismiss (Docket 17) is granted,
and Brende's petition is dismissed with prejudice.
Brende's motion to stop delays (Docket 13) is denied as
Brende's motion to appoint counsel and for release of
trial transcript (Docket 20) is denied as moot.
Brende's motion for dismissal burden of proof on
insufficiency of ...