United States District Court, D. South Dakota, Northern Division
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
ORDER DENYING CERTIFICATE OF APPEALABILITY.
CHARLES B. KORNMANN United States District Judge
was convicted of third degree rape in the South Dakota Fifth
Judicial Circuit Court, Roberts County, and was sentenced on
October 23, 2014, to 25 years custody. He previously filed in
federal court a civil rights complaint pursuant to 42 U.S.C.
§ 1983, CIV 15-1001. He sought an order vacating his
conviction and release from custody. His complaint was
construed as a petition for a writ of habeas corpus, which
petition was dismissed without prejudice for failure to
exhaust state court remedies.
subsequently filed post-conviction relief motions in his
state criminal case as well as a state habeas corpus
petition. The state habeas corpus petition is still pending.
has now filed this second petition for a writ of habeas
corpus, challenging his state court rape conviction. He has
also filed a motion to proceed without the prepayment of fees
and an affidavit in forma pauper is pursuant to 28
U.S.C. § 1915. Petitioner has made the requisite showing
under 28 U.S.C. § 1915(a). Accordingly, his motion to
proceed in forma pauperis will be granted. Pursuant
to 28 U.S.C. § 1915(b)(1), petitioner is required to pay
the statutory filing fee of $5.00 for this action. See 28
U.S.C § 1914(a). Petitioner filed a motion for the
appointment of counsel which, in this case, is premature.
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2254 Proceedings for
the United States District Courts.
is required to exhaust state court remedies prior to bringing
federal habeas corpus claims. 28 U.S.C. § 2254(b)(1)(A).
"The exhaustion requirement has as its purpose giving
state courts 'the first opportunity to review federal
constitutional issues and to correct federal constitutional
errors made by the state's trial courts.'"
Smittie v. Lockhart, 843 F.2d 295, 296-97 (8th Cir.
contends that the exhaustion requirement should be waived
because the South Dakota Supreme Court rejected his pro
se documents attempting to appeal the state trial
court's failure to as yet rule on his post-conviction
motions. Petitioner admits in his petition that he filed a
petition for a writ of habeas corpus in state court, which
petition is separate from the pending post-conviction relief
claims he is raising in his criminal case. The petition was
filed in March 2016. Counsel was appointed for petitioner and
it appears the matter is proceeding through the state court.
Petitioner is required to fully exhaust state court habeas
remedies before proceeding in federal court under §
has filed a motion for a "PR bond pending appeal."
There is no federal court appeal pending and there is no
authority for a federal district judge to order the release
of a state court prisoner unless a writ of habeas corpus
issues. No writ of habeas corpus can issue until the state
court first has a full opportunity to consider
petitioner's Constitutional claims.
upon the foregoing, IT IS ORDERED:
Petitioner's motion, Doc. 2, to proceed without the
prepayment of fees is granted. Petitioner, however, shall
pay, through the Clerk of Court in Pierre, South Dakota, the
$5.00 statutory filing fee for the above-captioned habeas
petition is dismissed without prejudice for failure to
exhaust state court remedies.
motion, Doc. 4, to appoint counsel is denied.
other motions are denied as frivolous.
UNITED STATES COURT OF APPEALS ...