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Merrival v. Dooley

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

September 12, 2017

MICHEAL LYNN MERRIVAL, JR., Petitioner,
v.
ROBERT DOOLEY, WARDEN; AND MARTY JACKLEY, ATTORNEY GENERAL, Respondents.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Petitioner 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 12).

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

         PETITIONER'S OBJECTIONS

         Mr. Merrival's objections to the report and recommendation are as follows:

1. Special circumstances of Mr. Merrival's case waive the exhaustion requirement.
2. Mr. Merrival's attempt to exhaust the state remedies was obstructed by the state court.

(Docket 13). Each objection will be separate analyzed.

         1. SPECIAL CIRCUMSTANCES OF MR. MERRIVAL'S CASE WAIVE THE EXHAUSTION REQUIREMENT.

         Mr. 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).

         Magistrate Judge Duffy found petitioner failed to meet the exhaustion requirement of § 2254. (Docket 10 at p. 4). Petitioner objects to that conclusion. (Docket 13).

         Under 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 consideration:

(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 ...

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