United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION AND ORDER
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
matter is before the court on the pro se petition of
Steven Duncan pursuant to 28 U.S.C. § 2254. See
Docket No. 1. Mr. Duncan is currently incarcerated at the
Yankton Community Work Center, a prison of the state of South
Dakota, pursuant to a state court conviction. See
Docket No. 11. Respondents have moved to dismiss Mr.
Duncan's petition. See Docket No. 8. This matter
was referred to this magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, United
States District Court Judge.
Duncan was arrested on September 4, 2015, after he crashed
his vehicle into the car ahead of him at a stop sign. A
complaint was filed against him in state circuit court for
Lincoln County, South Dakota, on September 8, 2015, and he
was indicted by a grand jury September 12, 2015. On March 15,
2016, Mr. Duncan availed himself of his right to a jury
trial. He was convicted of sixth or subsequent offense
driving while under the influence and following too closely.
The state circuit court sentenced him on May 27, 2016, to 10
years' imprisonment. See Docket No. 9-1.
Duncan filed a direct appeal, arguing that the circuit court
violated his right to have a trial within 180 days as
provided for under state statute. See State v.
Duncan, 895 N.W.2d 779, 780 (S.D. 2017); Docket No. 9-2
at p. 2. Noting that Mr. Duncan's claim raised a question
of statutory interpretation of a state statute and not a
constitutional issue, the South Dakota Supreme Court affirmed
the circuit court's determination that it had not run
afoul of the 180-day rule. Duncan, 895 N.W.2d at
782. That decision was issued May 10, 2017. Id. at
17, 2017, Mr. Duncan filed a petition for habeas relief in
state circuit court. See Docket No. 9-3. He raised the
following 7 claims in that petition:
1. Defense counsel failed to allow Mr. Duncan to see the
video of his arrest and the photographs from the accident
scene; the first time Mr. Duncan saw this evidence was when
it was introduced at his trial.
2. Mr. Duncan was improperly charged under South Dakota's
3. Defense counsel failed to present evidence on count III
regarding whether Mr. Duncan had submitted to a breath or
4. The circuit court erred in instructing the jury by failing
to tell them to choose between count II or count III. Because
of the court's faulty jury instructions, Mr. Duncan has
been placed in Double Jeopardy.
5. The circuit court and the state's attorney violated
Mr. Duncan's due process rights by not bringing him to
court for a preliminary hearing that was scheduled on
September 8, 2015, resulting in Mr. Duncan being incarcerated
for 31 days before knowing the charges against him.
6. The circuit court violated Mr. Duncan's due process
rights by ordering him to pay Creighton University $11, 860
in restitution with insufficient documentation of the value
of the loss.
7. The circuit court erred by considering a letter from a
person “in the other car” because “there
was no proof of any medical issues and it should not have
See Docket No. 9-3 at pp. 2-5.
August 22, 2017, the state circuit court denied Mr.
Duncan's habeas petition without appointing counsel or
holding an evidentiary hearing because the court concluded
the petition was “frivolous or meritless.”
See Docket No. 9-4 at p. 2. The circuit court's
order did not address whether a certificate of probable cause
would issue. Id. The state circuit court's file
on Mr. Duncan's habeas case reveals no motion from Mr.
Duncan seeking the issuance of a certificate of probable
cause. The South Dakota Supreme Court also received no motion
from Mr. Duncan seeking the issuance of a certificate of
probable cause on his habeas petition.
Duncan filed his federal habeas petition with this court on
October 5, 2017. See Docket No. 1. In that petition,
Mr. Duncan raises the following issues:
1. Mr. Duncan asserts his rights under the Fifth, Sixth and
Fourteenth Amendments were violated when a preliminary
hearing was set for him on September 8, 2015, but he was not
brought to court for that hearing.
2. Mr. Duncan asserts his rights under the Fifth, Sixth and
Fourteenth Amendments were violated when the state failed to
afford him a speedy trial.
3. Mr. Duncan asserts his rights under the Fifth, Sixth, and
Fourteenth Amendments were violated when his trial counsel
failed to allow Mr. Duncan to review the video and
photographic evidence against him prior to trial.
4. Mr. Duncan asserts his rights under the Fifth, Sixth, and
Fourteenth Amendments were violated because the state court
has refused to give Mr. Duncan supporting documentation for
the attorney's fees, restitution, and costs assessed
against him as part of his sentence.
See Docket No. 1 at pp. 4-8.
now move to dismiss Mr. Duncan's habeas petition with
prejudice and without holding an evidentiary hearing.
See Docket No. 8. Respondents argue Mr. Duncan has
procedurally defaulted his claims. See Docket No. 9.
Mr. Duncan resists the motion. See Docket No. 10.
Standard Applicable to Rule 12(b)(6) Motions.
respondents' motion to dismiss is based on Fed.R.Civ.P.
12(b)(6), which allows dismissal if the petitioner has failed
to state a claim upon which relief can be granted.
Petitioners must plead “enough facts to state a claim
to relief that is plausible on its face.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 570
Federal Rule of Civil Procedure 8(a)(2), a petitioner must
plead only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Id. at 554-55 (quoting Fed.R.Civ.P. 8(a)(2)). A
complaint does not need “detailed factual
allegations” to survive a motion to dismiss, but a
plaintiff must provide the grounds for his entitlement to
relief and cannot merely recite the elements of his cause of
action. Id. at 555 (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). There is also a
“plausibility standard” which “requires a
[petition] with enough factual matter (taken as true)”
to support the conclusion that the [petitioner] has a valid
claim. Id. at 556. The petition must contain
sufficiently specific factual allegations in order to cross
the line between “possibility” and
“plausibility” of entitlement to relief.
are two “working principles” that apply to Rule
12(b)(6) motions. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). First, courts are not required to accept as true
legal conclusions “couched as factual
allegation[s]” contained in a petition. Id.
(citing Papasan, 478 U.S. at 286). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (quoting Twombly, 550 U.S. at 555).
Rule 8 “does not unlock the doors of discovery for a
[petitioner] armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 678-79.
the plausibility standard is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(quoting decision below Iqbal v. Hasty, 490 F.3d
143, 157-158 (2d Cir. 2007)). Where the petitioner's
allegations are merely conclusory, the court may not infer
more than the mere possibility of misconduct, and the
complaint has alleged--but has not
“show[n]”--that he is entitled to relief as
required by Rule 8(a)(2). Iqbal, 556 U.S. at 679
Court explained that a reviewing court should begin by
identifying statements in the petition that are conclusory
and therefore not entitled to the presumption of truth.
Id. at 679-680. Legal conclusions must be supported
by factual allegations demonstrating the grounds for a
petitioner's entitlement to relief. Id. at 679;
Twombly, 550 U.S. at 555; Fed.R.Civ.P. 8(a)(2). A
court should assume the truth only of “well-pleaded
factual allegations, ” and then may proceed to
determine whether the allegations “plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S.
se complaints are to be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th
Cir. 2004). However, even with liberal construction, “a
pro se complaint must contain specific facts
supporting its conclusions.” Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Ellis
v. City of Minneapolis, 518 Fed.Appx. 502, 504 (8th Cir.
2013). Civil rights complaints cannot be merely conclusory.
Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993);
Parker v. Porter, 221 Fed.Appx. 481, 482 (8th Cir.
12(b)(6) requires the court to evaluate the sufficiency of a
plaintiff's pleading of a claim. See
Fed.R.Civ.P. 12(b)(6); Iqbal, 556 U.S. at 679. Thus,
the primary document the court examines is the
plaintiff's initial pleading- here, the habeas petition.
Rule 56, the rule for summary judgment, allows the court to
consider affidavits, documents, deposition transcripts and
other items extraneous to the complaint in determining
whether to grant the motion. See Fed. R. Civ. P. 56.
In this district, a summary judgment motion also requires the
movant to file a statement of undisputed material facts.
See DSD L.R. 56.1A. Respondents did not file a
statement of undisputed material facts in support of their
motion to dismiss, so it cannot be construed to be a summary
evaluating a Rule 12(b)(6) motion are not strictly limited to
evaluating only the petition, however. Dittmer
Properties, L.P. v. F.D.I.C., 708 F.3d 1011, 1021 (8th
Cir. 2013). They may consider “matters incorporated by
reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, items appearing in
the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned.”
Id. (citing Miller v. Redwood Toxicology Lab.,
Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (quoting 5B
Charles A. Wright & Arthur R. Miller, Fed. Practice
& Procedure § 1357 (3d ed. 2004))). In a habeas
action, it is appropriate for the court to take judicial
notice of the settled record of the underlying proceedings
when evaluating a motion to dismiss. See Hood v. United
States, 152 F.2d 431 (8th Cir. 1946) (federal district
court may take judicial notice of proceedings from another
federal district court); Matter of Phillips, 593
F.2d 356 (8th Cir. 1979) (proper for federal court to take
judicial notice of state court pleadings); Green v.
White, 616 F.2d 1054 (8th Cir. 1980) (court of appeals
may take judicial notice of district court filings). ...