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Duncan v. United States

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

January 10, 2018

JAMES CHANDLER MOUND, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION AND ORDER

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This 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.

         FACTS

         Mr. 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.

         Mr. 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 779.

         On July 17, 2017, Mr. Duncan filed a petition for habeas relief in state circuit court.[1] 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 DUI statutes.
3. Defense counsel failed to present evidence on count III regarding whether Mr. Duncan had submitted to a breath or chemical test.
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 been used.”

See Docket No. 9-3 at pp. 2-5.[2]

         On 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.

         Mr. 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.

         Respondents 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.

         DISCUSSION

         A. Standard Applicable to Rule 12(b)(6) Motions.

         The 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 (2007)(emphasis added).

         Under 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. Id.

         There 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.

         Second, 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 (emphasis added).

         The 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. at 679.

         Pro 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. 2007).

         Rule 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 judgment motion.

         Courts 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). ...


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