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Iverson v. Dooley

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

March 6, 2017

BRYAN IVERSON, a/k/a Bryan J. Iverson, Petitioner,
v.
BOB DOOLEY, Warden, Respondent.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Petitioner Bryan J. Iverson is an inmate incarcerated pursuant to a 2012 South Dakota state court judgment. (Docket 7). He is housed at the Rapid City Community Work Center. Id.

         Mr. Iverson, appearing pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (Docket 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and this court's October 16, 2014, standing order, the petition was referred to United States Magistrate Judge Veronica L. Duffy. Magistrate Judge Duffy filed a report and recommendation concluding the court should dismiss Mr. Iverson's petition because he did not exhaust his state court remedies. (Docket 7 at p. 4). Mr. Iverson filed timely objections to Magistrate Judge Duffy's report and recommendation. (Docket 8).

         Mr. Iverson bases his petition on a report finding him noncompliant with his individual program directive, which he argues unconstitutionally extends his period of incarceration. (Dockets 1 & 2-14). His petition provides four grounds, one claiming an Eighth Amendment violation and three claiming Fifth Amendment due process violations. (Docket 1 at pp. 6-8). Mr. Iverson filed a document requesting the court strike his fourth ground in the petition and construe his petition as a petition under 28 U.S.C. § 2254. (Docket 9).

         Since filing his petition, Mr. Iverson also filed a motion in limine, a motion to supplement, and a motion to amend. (Dockets 4, 10 & 11). His motion to supplement the petition states that on December 15, 2016, the South Dakota Board of Pardons and Paroles found Mr. Iverson noncompliant, consistent with the prior report. (Dockets 10-1 & 10-3).

         PROCEDURAL BACKGROUND

         The report forming the basis of the petition occurred on May 23, 2016. (Docket 2-14). The report states Mr. Iverson failed “to abide by rules or regulations governing special programs including[] work release, community service, [furloughs] or private employment inside an institution.” Id. Consequently, Mr. Iverson was found noncompliant with his individual program directive[1] and his parole date was moved to a later time. (Docket 10-3 at pp. 1-3). Mr. Iverson requested an administrative remedy and was denied on July 26, 2016, because the request “exceeded the allotted time period for requesting an Administrative Remedy.” (Docket 2-15).

         On December 15, 2016, the Board of Pardons and Paroles (“the Board”) held a hearing to review whether Mr. Iverson complied with his individual program directive. (Docket 10-3). The Board found Mr. Iverson noncompliant. Id. at p. 2. On February 3, 2017, Mr. Iverson filed a supplement in this court explaining he appealed the Board's findings to the state circuit court as of December 27, 2016. (Docket 12).

         ANALYSIS

         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. Iverson's objections are overruled and the report and recommendation is adopted in full.

         Magistrate Judge Duffy recognized Mr. Iverson improperly sought habeas relief under § 2241 because that avenue for relief is available to federal prisoners and Mr. Iverson is a state prisoner. (Docket 7 at p. 1). State prisoners must seek habeas relief via § 2254. Id. at p. 2 (citing Singleton v. Norris, 319 F.3d 1018, 1022-23 (8th Cir. 2003)). Acknowledging the court may construe Mr. Iverson's case as a § 2254 petition, Magistrate Judge Duffy reasoned doing so would not alter her ultimate finding. Id. The court adopts this approach and rules on the petition as if brought under § 2254.

         Magistrate Judge Duffy found petitioner failed to meet “the exhaustion requirement of § 2254.” (Docket 7). Petitioner objects to that conclusion. (Docket 8).

         Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas review of state court convictions is limited to claims the petitioner previously ...


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