United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Chad Feist, appearing pro se, filed a motion (Docket
1) pursuant to 28 U.S.C. § 2254 (“2254
Motion”) to vacate or set aside his criminal conviction
in State v. Chad M. Feist, 9C12000282AO. The
respondent filed an answer opposing the 2254
Motion. (Docket 14). Pursuant to a standing order
of October 16, 2014, the matter was referred to United States
Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C.
§ 636(b)(1)(B). Judge Duffy issued a report recommending
the court deny all of Mr. Feist's claims in the 2254
Motion. (Docket 46). Mr. Feist timely filed his objections.
(Docket 47). For the reasons stated below, Mr. Feist's
2254 motion is denied.
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
“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).
court reviewed the record in this case de novo and carefully
considered Mr. Feist's objections to the report and
recommendation. (Docket 47). The court finds Mr. Feist's
objections are without merit.
Mr. Feist's objections is that his trial attorney knew
RR, the victim, which created a conflict of interest in
representing Mr. Feist in the state criminal case. (Docket 47
at p. 7). The court is unable to find any record in the state
habeas file that such a relationship existed. Even if true,
this issue was not raised by Mr. Feist at the state habeas
hearing. See state habeas hearing transcripts,
January 15, 2015 and April 30, 2015. By failing to raise this
issue in the state habeas proceeding, Mr. Feist procedurally
defaulted on the issue. “If a petitioner has not
presented his habeas corpus claim to the state court, the
claim is generally defaulted. . . . [The federal court] will
not review a procedurally defaulted habeas claim because the
state has been deprived of an opportunity to address the
claim in the first instance.” Barrett v.
Acevedo, 169 F.3d 1155, 1161 (8th Cir. 1999). Mr.
Feist's objection is overruled.
of Mr. Feist's objections to the report and
recommendation is that his trial attorney violated
attorney-client confidentiality by permitting the
attorney's husband to be present during the discussion of
the state's plea offer. (Docket 47 at p. 8). This issue
was raised during the state habeas hearing. See
state habeas hearing transcript dated January 15, 2015
(“HT” at pp. 27:13-28:23). The attorney testified
she advised Mr. Feist that her husband was a paralegal and
investigator who helped with earlier investigative issues
surrounding the suppression hearing. Id. The
attorney testified she explained that, as her agent, her
husband was under the same attorney-client confidentiality
obligation as was she as his attorney. Mr. Feist did not
object. Id. During his testimony at the state habeas
hearing, Mr. Feist did not contest or contradict the
attorney's testimony on this point. Id. at p.
state habeas proceeding, the circuit judge entered a
memorandum opinion on June 15, 2015. Habeas Memorandum
Decision, Feist v. Dooley, Civ. 14-90 (4th Cir. Jun.
15, 2015); see also state habeas proceedings
(“SHP” at pp. 162-186). The decision did not
specifically address the attorney-client confidentiality
claim, but ruled: “Mr. Feist has raised numerous other
issues as grounds for habeas relief that are found in the
pleadings in this action. The court finds that all other
issues are not supported by the record or the law, or are
outside the confines of a habeas corpus case.” (SHP at
Judge Duffy's report and recommendation reviewed the
issues raised by Mr. Feist but not specifically addressed in
the state habeas order. (Docket 46 at pp. 16-19).
“Here, the state habeas trial court ruled on the merits
of Mr. Feist's claims, even though some of those claims
were not individually discussed. There is no indication of
another reason for dismissal, or state-law procedural rule
that indicates otherwise.” Id. at p. 46
(references omitted). With that explanation, the magistrate
judge “examine[d] the state circuit court's
memorandum opinion and review[ed] that decision pursuant to
the [Anti-Terrorism and Effective Death Penalty Act]
standard.” Id. at p. 19. Mr. Feist identifies
no constitutional error or prejudice which occurred and his
objection lacks any merit. 28 U.S.C. § 2254(d)(1). Mr.
Feist's objection is overruled.
Feist's remaining objections are repetitive of the
arguments made initially in support of the 2254 Motion and
rejected in the report and recommendation. Compare
Dockets 1, 2, 10-12, 17-29, 32-35, 41 and 47. Each of the
grounds for relief alleged in the 2254 Motion was thoroughly
analyzed and rejected by Judge Duffy in the report and
court finds the report and recommendation is an accurate and
thorough recitation of the facts and applicable law. The
court further finds Judge Duffy's legal analysis is
well-reasoned. The court adopts and incorporates the report
and recommendation in full and overrules Mr. Feist's
objections for the same reasons set forth in the report and
carefully reviewed the record in this case and good cause
appearing, it is ORDERED that Mr. Feist's ...