United States District Court, D. South Dakota, Western Division
BRYAN IVERSON, a/k/a Bryan J. Iverson, Petitioner,
BOB DOOLEY, Warden, Respondent.
JEFFREY L. VIKEN CHIEF JUDGE.
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.
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).
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).
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).
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 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
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).
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.
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.
Judge Duffy found petitioner failed to meet “the
exhaustion requirement of § 2254.” (Docket 7).
Petitioner objects to that conclusion. (Docket 8).
the Anti-Terrorism and Effective Death Penalty Act, federal
habeas review of state court convictions is limited to claims
the petitioner previously ...