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Blakney v. Young

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

March 27, 2019




         Plaintiff Christopher William Blakney (Blakney) filed a petition for habeas corpus 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[1], in his capacity as Attorney General of the State of South Dakota, alleging that his incarceration pursuant to a state court revocation of suspended sentence violates his constitutional right to due process. Doc. 1. This Court previously granted in part a motion to dismiss, allowing those claims which Blakney exhausted in state court to proceed in federal court and dismissing Blakney's remaining unexhausted claims as frivolous. Doc. 11. Defendants then filed a motion to dismiss on the merits. Doc. 13.

         I. Judicial notice of state court files.

         Part of what the Defendants filed alerted this Court to Blakney's related habeas case against Darin Young filed in state court in 2016, as Minnehaha County civil case 16-859, in which Blakney makes claims of a violation of Brady v. Maryland and of an illegal or ambiguous sentence. Doc. 8-27. This Court was interested in the status of Blakney's state court habeas case because of the deferential nature of federal court review of a state court conviction under 28 U.S.C. § 2254, and because of the preference for state courts to correct constitutional defects in state convictions first to avoid the "unseemly" disruption of state judicial proceedings through premature federal court intervention. Rose v. Lundv. 455 U.S. 509, 518 (1982) (quoting Parr v. Burford. 339 U.S. 200, 204 (1950)). Thus, this Court wanted to see the outcome of Minnehaha County civil case 16-859 to determine whether any state court ruling had granted relief to Blakney or would impact this Court's review.

         In seeking out public information on Minnehaha County civil case 16-859, a law clerk for this Court learned of other civil cases filed in state court by Blakney challenging his detention and sentence. The Minnehaha County Clerk of Court then sent to this Court's Clerk of Court all filed pleadings and transcripts in Blakney's two most recent Minnehaha County criminal cases, 11-4923 and 11-4924, as well as all pleadings filed in Minnehaha County civil cases, 16-859, 17-2981, 18-1596, 18-2633. These files are on what is called the "N" drive of the District of South Dakota, not subject to public view in order to protect personal identifying information-names of juveniles, dates of birth of Blakney and possibly others, and addresses-that might appear in some pleadings.[2] These files are public information available through the Minnehaha County Clerk of • Court, consisting of pleadings and documents filed by Blakney, the Defendants, the state court (transcripts and orders), and the Minnehaha County State's Attorney.

         With Blakney proceeding pro se and with limited records submitted by the Defendants, this Court believed it appropriate to take judicial notice of the state court records now on this Court's "N" drive under Rule 201 of the Federal Rules of Evidence. Under Rule 201(b), the Minnehaha County Clerk of Court's official records of Blakney's criminal and civil cases are "not subject to reasonable dispute" and from a source "whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Under Rule 201(c), this Court "may take judicial notice on its own," and under Rule 201(d) may do so "at any stage of the proceeding." Id., 201. Rule 201(e) entitles the parties to be heard on the propriety of taking judicial notice. Id. 201(e). Accordingly, this Court, on February 22, 2019, issued an Order, Doc. 16, giving the parties fourteen calendar days within which to object to this Court taking judicial notice of Minnehaha County criminal files 11-4923 and 11-4924, and of Minnehaha County civil files 16-859, 17-2981, 18-1596, and 18-2633. Neither Blakney nor the Defendants objected, so this Court now takes judicial notice of those state case files in order to provide a full recount of the procedural and substantive background of Blakney's convictions, sentences, revocations, incarceration, and challenges thereto.

         II. Blakney's state court history.

         A. Initial criminal cases and sentences.

         Blakney's state-court odyssey relating to claims in this § 2254 case began with his indictment in two separate Minnehaha County criminal cases on September 1, 2011. State CR 11-4923; State CR 11-4924. In one case, Blakney was charged with second degree rape allegedly perpetrated on July 16, 2011, of then sixteen-year-old J.K.G. State CR 11-4923. In the other case, Blakney was charged with one count of second-degree rape, one count of aggravated assault, and three counts of simple assault for allegedly raping his girlfriend, T.S., threatening her with a boxcutter, and committing other domestic assaults against her, all on August 2, 2011. State CR 11-4924; Doc. 8-1. In both criminal cases, the state's attorney filed a Part II information for habitual criminal based on Blakney's four prior felony convictions, including three grand theft convictions in 1996 and 1997, and a possession of controlled substance felony conviction in 2010. State CR 11-4923; State CR 11-4924; Doc. 8-2.

         Blakney, with the assistance of counsel, reached a plea agreement to resolve the charges in both of his state criminal cases. Under the plea agreement, Blakney entered an Alford plea.[3]Consistent with the plea agreement, the Honorable Robin J. Houwman on November 30, 2011, accepted Blakney's guilty plea to a class-one misdemeanor in State CR 11-4923 of simple assault on J.K.G. Judge Houwman sentenced Blakney in State CR 11-4923 on that same date (although memorialized in a judgment and sentence dated December 29, 2011) to incarceration of 364 days, suspended upon conditions that Blakney commit no class-one misdemeanors or greater for a period of two years, commit no violent offenses for a period of two years, have no contact with the victim for a period of two years, pay certain costs, and comply with terms of a two-year probationary period. Relatedly, in State CR 11-4924, consistent with the plea agreement, Blakney pleaded guilty before Judge Houwman on November 30, 2011, to just the aggravated assault count and was sentenced on the same day. A judgment and sentence dated December 29, 2011, memorializes that Blakney received in State CR 11-4924 a sentence of thirteen years, suspended on the performance of fourteen listed conditions. As matters most directly to Blakney's present § 2254 case, condition one stated:

         1. That the defendant sign and abide by the standard supervised probation agreement with the Court Services Department for twenty-four (24) months.

         Doc. 8-3. In turn, paragraph one of the standard supervised probation agreement provided: "You shall obey all federal, state, and tribal laws and municipal ordinances." Doc. 8-4. Blakney's other conditions of suspended sentence included that he serve 120 days in the Minnehaha County Jail, with credit for 97 days previously served, that he pay certain costs and fees, that he submit to drug and alcohol testing, and that he use no controlled substances. State CR 11-4924; Doc. 8-3. Three of the final terms for the suspended sentence were the following:

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 one misdemeanors or greater for a period often (10) years.
13. That the defendant commit no violent offenses for a period often (10) years.

         State CR 11 -4924; Doc. 8-3. As a consequence of the plea agreement, the charges in the indictment in State CR 11-4923 and in counts one, three, four, and five in State CR 11-4924 were dismissed.

         B. Prior revocation petitions and reversal of imposition of suspended sentence.

         Blakney faced his first motion to revoke suspended sentence on January 17, 2012, based on a violation report concerning a positive test for methamphetamine use. State CR 11 -4923; State CR 11-4924. That motion to revoke suspended sentence, however, was dismissed on January 25, 2012. State CR 11-4923; State CR 11-4924.

         With regard to State CR 11-4924 only, Blakney faced a second motion to revoke suspended sentence filed on November 14, 2012. State CR 11-4924; Doc. 8-5. The violation report set forth that Blakney had completed an assessment at Compass Center, and his probation officer had directed him to follow a recommendation to participate in a sex offender program, but Blakney had refused to do so. State CR 11-4924; Doc. 8-5. On April 20, 2013, the Honorable Patricia Riepel revoked Blakney's suspended sentence due to his failure to complete a sex offender evaluation and imposed the suspended sentence of thirteen years with credit for 196 days served. State CR 11-4924; Doc. 8-6. Blakney appealed the revocation of his sentence to the Supreme Court of South Dakota. Doc. 8-7. The Supreme Court of South Dakota split 3-2 with the majority voting to reverse the revocation of the suspended sentence because there was no condition in his sentence that Blakney undergo sex offender evaluation or attend a sex offender program and because there consequently had been an improper delegation of sentencing authority to a probation officer to impose such conditions on Blakney after sentencing. State v. Blakney, 851 N.W.2d 195, 199-200 (S.D. 2014); Doc. 8-12. The two dissenting justices believed that Blakney had failed to adequately preserve the issue below. Blakney, 851 N.W.2d at 200-01; Doc. 8-12.

         Judge Riepel on remand entered an order vacating the revocation of the suspended sentence on July 30, 2014. State CR 11-4924; Doc. 8-13. Blakney had been in state custody during the pendency of that revocation and appeal. By July 30, 2014, more than two years had passed since Judge Houwman had sentenced Blakney back on November 30, 2011, and since Judge Houwman signed the judgment on December 29, 2011. Blakney likely had completed his initial 120-day sentence around December 29, 2011. Under South Dakota law, Blakney's probationary period in State CR 11-4923 and under condition one of the conditions of suspended sentence in State CR 11-4924 appears to have run. See SDCL § 23A-27-19.1 (listing circumstances under which probationary periods may be tolled, but not listing as a circumstance time a defendant sits in custody prior to a reversal of an improper imposition of suspended sentence); see also Doc. 8-24 at 23 (State appellate brief acknowledging Blakney on "unsupervised probation" after two-year period ran).

         C. Current revocation of suspended sentence.

         The State revoked Blakney's suspended sentence a second time due to Blakney's behavior on October 31, 2014. There is no dispute of material fact as to what occurred on October 31, 2014, but issues only on whether Blakney received due process and whether the evidence was sufficient to support revocation.

         The initial procedural oddity with Blakney's most recent revocation of suspended sentence relates to the condition initially alleged to have been violated. In State CR 11-4924, the motion to revoke suspended sentence attached a violation report contending that Blakney had violated the first paragraph of the conditions of adult probation that "You shall obey all federal, tribal, state laws and municipal ordinances." Doc. 8-16. The terms of adult probation, however, were incorporated into conditions of Blakney's suspended sentence pursuant to paragraph one of the judgment and sentence imposed on November 30, 2011 and formalized in writing on December 29, 2011-that Blakney "abide by the standard supervised probation agreement with the Court Services Department for twenty-four (24) months." Doc. 8-3. The behavior on October 31, 2014 fell outside of the 24-month period regardless of whether it began on November 30, 2011, or on December 29, 2011.

         Judge Riepel again presided over the motion to revoke the suspended sentence and appointed counsel for Blakney. The state court held an advising and bond hearing on November 10, 2014, advising Blakney of the allegation that his arrest on October 31, 2014 for simple assault and driving while revoked was a violation of condition one of his release. Doc. 8-17. Blakney denied the violation and an evidentiary hearing on the motion to revoke suspended sentence occurred on December 9, 2014. At that hearing Blakney's counsel argued that the condition alleged for revocation of the suspended sentence-that he abide by conditions of probation for 24 months, which in turn required obeying all state laws and municipal ordinances-did not apply to him in October of 2014. Blakney appears to have first raised that issue after Judge Riepel heard testimony from the three witnesses at the revocation hearing. See Doc. 8-18 at 35-37.

         Again, there is little factual dispute about what occurred on October 31, 2014, and most of the testimony during the December 9, 2014 hearing was not contested. In October of 2014, Blakney was living with Sharrie Kilmer in a household that included her 17-year-old daughter D.K. During the morning of October 31, 2014, Kilmer was getting ready for work, and Blakney became angry with her.[4] Kilmer had moved from her bedroom into the bathroom, and Blakney had followed her, continuing to argue in a raised voice. Kilmer's daughter, D.K., who had seen Blakney be physical with her mother previously, chose to go into the bathroom to be with her mother.[5] Blakney told D.K. to get out of the bathroom, and as D.K. put it, she copped an attitude by saying "whatever." Blakney jumped up from where he was sitting on the toilet and confronted D.K. saying "what did you say to me?" D.K. then left the bathroom and was in the process of shutting the door with her fingers in the area where the door knob was, with the bulk of her hand on the outside portion of the door and the ends of her fingers on the inside portion of the door. Meanwhile, Blakney turned away from the door to face Kilmer and continue the argument. Blakney then horse kicked the bathroom door with his back to it. The door slammed shut on D.K.'s fingers and she screamed in pain. Blakney was immediately apologetic saying that he did not mean to hurt her. Blakney did not hit Kilmer that day. D.K. went to the emergency room because her fingers were badly bruised, although they ...

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