United States District Court, D. South Dakota
OPINION AND GRANTING IN PART MOTION TO
ROBERTO A. LANCE UNITED STATES DISTRICT JUDGE
Christopher William Blakney (Blakney) commenced this habeas
corpus proceeding under 28 U.S.C. § 2254(b) against
Darin Young, in his capacity as Warden of the South Dakota
State Penitentiary, and Marty J. Jackley, in his capacity as
Attorney General of the State of South Dakota (the
defendants), alleging his incarceration violates his
constitutional right to due process. Doc. 1. The defendants
moved to dismiss Blakney's petition without prejudice
because they believe eight of the ten grounds for relief are
unexhausted. Doc. 7. For the reasons stated below, this Court
grants in part and denies in part the defendants' motion.
November 30, 2011, Christopher Blakney pleaded guilty to
aggravated assault in South Dakota's Second Judicial
Circuit. Doc. 8-3. He received a thirteen-year suspended
sentence, subject to fourteen conditions. Doc. 8-3. These
1. That the defendant sign and abide by the standard
supervised probation agreement with the Court Services
Department for twenty-four (24) months....
11. That the defendant complete any evaluation, counseling,
anger management, or participation in 24/7 program as
directed by the Court or the Court Services Officer.
12. That the defendant commit no Class I misdemeanors or
greater for a period often (10) years.
That the defendant commit no violent offenses for a period
often (10) years. Doc. 8-3 at 1-2. The first condition meant
that Blakney was also subject to the standard conditions of
adult probation. The standard conditions of Blakney's
adult probation required that he "obey all federal,
state, and tribal laws and municipal ordinances" for the
duration of his 24 month probation period. Doc. 8-4.
November 14, 2012, the State moved to revoke Blakney's
suspended sentence based on a Violation Report asserting that
Blakney violated Condition 11 of his sentence by failing to
comply with the Court Service Officer's directive to
verify that he had undergone a sex offender evaluation. Doc.
8-5 at 3. The state court entered an Order Revoking Suspended
Sentence, and Blakney was incarcerated. Doc. 8-6. Blakney
appealed the revocation of his suspended sentence to the
Supreme Court of South Dakota, which reversed the Second
Judicial Circuit's decision because sex offender
treatment was not expressly required by Condition 11 or
otherwise as part of the sentence. Doc. 8-11. The Second
Judicial Circuit vacated its previous revocation of
Blakney's suspended sentence on July 30, 2014. Doc. 8-13.
State again moved to revoke Blakney's suspended sentence
on November 7, 2014, a week after Blakney was arrested in
Lincoln County, South Dakota for simple assault and driving
with a revoked license. Doc. 8-16. The Second Judicial
Circuit entered an Order Revoking Suspended Sentence on June
30, 2015. Doc. 8-21. Again, Blakney appealed to the Supreme
Court of South Dakota, which summarily affirmed the
revocation of Blakney's suspended sentence on November
14, 2016. Doc. 8-22; Doc. 8-23; Doc. 8-26.
filed this timely 28 U.S.C. § 2254 federal habeas
petition on February 16, 2017. Doc. 1. Blakney's petition
raised ten grounds for granting the writ of habeas corpus,
all of which allege violations of Blakney's Fifth and
Fourteenth Amendment rights to due process. Doc. 1 at 5-18.
The defendants now move to dismiss Blakney's federal
habeas petition because they believe that he has exhausted
only two of the ten asserted grounds in the petition and that
stay and abeyance is inappropriate. Doc. 7. Blakney believes
that he has exhausted all ten of his claims in state court
and that his federal habeas petition may proceed in this
Court in its entirety without returning to state court. Doc.
2254 of Title 28 allows a state inmate to collaterally attack
his conviction and sentence as contrary to the United States
Constitution, but the inmate first must exhaust through
available state courts his Constitution-based claims for
relief. Under § 2254, a federal court cannot grant a
writ of habeas corpus to a "person in custody pursuant
to the judgment of a State court, " unless the
"applicant has exhausted the remedies available in the
courts of the State, " or unless "there is an
absence of available State corrective process" or
"circumstances exist that render such process
ineffective to protect the rights of the applicant." 28
U.S.C. § 2254(b)(1). "[T]he state prisoner must
give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a
habeas petition." O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). "Only if the state courts have
had the first opportunity to hear the claim sought to be
vindicated in a federal habeas proceeding does it make sense
to speak of the exhaustion of state remedies."
Picard v. Connor, 404 U.S. 270, 276 (1971). The
exhaustion requirement protects the state courts' role in
enforcing federal law, allows state courts the opportunity
first to correct possible constitutional defects in state
court convictions, and prevents the potentially
"unseemly" disruption of state judicial proceedings
through premature federal court intervention. Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting
Parr v. Burford, 339 U.S. 200, 204 (1950)). Under
the framework established in Lundy, a federal
district court may not issue the writ of habeas corpus in
response to a "mixed" petition containing some
exhausted claims and some unexhausted ones.
determine if a claim has been exhausted, a federal court must
determine whether the petitioner fairly presented the issue
to the state courts in a federal constitutional context.
Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir.
1992). "To satisfy exhaustion requirements, a habeas
petitioner who has, on direct appeal, raised a claim that is
decided on its merits need not raise it again in a state
post-conviction proceeding." Id., "A claim is
considered exhausted when the petitioner has afforded the
highest state court a fair ...