United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Micheal Merrival, Jr., while an inmate at the Pennington
County Jail in Rapid City, South Dakota, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Dockets 1 & 9). The matter was
referred to United States Magistrate Judge Veronica L. Duffy
under 28 U.S.C. § 636(b)(1)(B). On April 17, 2017, Judge
Duffy issued a report recommending the court dismiss Mr.
Merrival's habeas petition without prejudice. (Docket 10
at p. 7). Mr. Merrival timely filed his objections. (Docket
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. Merrival's
objections are overruled and the report and recommendation is
adopted in full.
Merrival's objections to the report and recommendation
are as follows:
1. Special circumstances of Mr. Merrival's case waive the
2. Mr. Merrival's attempt to exhaust the state remedies
was obstructed by the state court.
(Docket 13). Each objection will be separate analyzed.
SPECIAL CIRCUMSTANCES OF MR. MERRIVAL'S CASE WAIVE THE
Merrival entered guilty pleas to two separate counts of grand
theft in South Dakota state court. Judgments were filed on
January 26, 2016, indicating Mr. Merrival was sentenced to 10
years' imprisonment in case number 13-859 and 5
years' imprisonment in case number 14-3448. (Dockets 9-8
and 9-9). Mr. Merrival filed direct appeals of both
convictions. On January 17, 2017, the South Dakota Supreme
Court affirmed both convictions. (Docket 2-1 at pp. 2-3). Mr.
Merrival did not file a state habeas petition. (Docket 9 at
p. 2). Mr. Merrival filed a § 2254 petition on April 10,
2017. (Docket 1).
Judge Duffy found petitioner failed to meet the exhaustion
requirement of § 2254. (Docket 10 at p. 4). Petitioner
objects to that conclusion. (Docket 13).
the Anti-Terrorism and Effective Death Penalty Act, federal
habeas review of state court convictions is limited to claims
the petitioner previously presented to the state courts for
(b) (1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not ...