United States District Court, D. South Dakota, Western Division
JEFFREY VIKEN CHIEF JUDGE
Rex Gard filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Docket 1). Mr. Gard
asserts “an actual innocence claim as well as
ineffective assistance of trial, appeal, and habeas
counsel” violating the federal and South Dakota
constitutions. Id. at ¶ 2. However, the
majority of Mr. Gard's petition is devoted to allegations
that the South Dakota Department of Corrections and the staff
at the Mike Durfee State Prison in Springfield, South Dakota,
are not providing adequate legal assistance or access to
legal materials to prisoners. Id. at ¶¶ 3,
5-13. Respondents moved to dismiss the petition. (Docket 9).
Mr. Gard resists the motion to dismiss. (Docket 10).
to a standing order of April 1, 2018, the matter was referred
to United States Magistrate Judge Daneta Wollmann pursuant to
28 U.S.C. § 636(b)(1)(B) for a report and recommendation
(“R&R”). The magistrate judge recommended the
court dismiss this petition without prejudice because Mr.
Gard failed to obtain permission from the United States Court
of Appeals for the Eighth Circuit as required by 28 U.S.C.
§ 2244(b)(3)(A). (Docket 11). Mr. Gard timely objected
to the R&R. (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). For the
reasons given below, the court overrules Mr. Gard's
objections, adopts the R&R as supplemented by this order,
and dismisses the petition. After the R&R was filed, Mr.
Gard moved for a stay “on these proceedings” to
request leave from the Eighth Circuit to file a subsequent
habeas petition. (Docket 13). The court denies the motion for
Gard was convicted in a South Dakota jury trial of 13 counts
of theft, 6 counts of forgery, and 1 count of conspiracy to
commit grand theft. State v. Gard, 742 N.W.2d 257,
259 (S.D. 2007). The state court judge sentenced Mr. Gard to
65 years of prison. Id. The South Dakota Supreme
Court affirmed the conviction. Id. Mr. Gard
petitioned for a writ of habeas corpus in South Dakota state
court, which was denied. See Docket 9-6 (respondents'
copy of the order denying the writ). The South Dakota Supreme
Court denied a certificate of probable cause that an
appealable issue existed. (Docket 9-10).
Gard then filed his first petition for a writ of habeas
corpus in this court. Gard v. Weber, Civ. 10-5017,
Docket 1 (D.S.D. Mar. 25, 2010). The first petition alleged
his state court sentence violated the Eighth Amendment and
his trial counsel was ineffective. Id., Docket 36 at
p. 13 (D.S.D. Mar. 3, 2012). The court denied Mr. Gard's
petition. Id. at p. 29. The Eighth Circuit denied
Mr. Gard's application for a certificate of appealability
and dismissed his appeal. Id., Docket 48. Mr. Gard
filed his second petition for a writ of habeas corpus on June
14, 2018. (Docket 1).
magistrate judge recommended the court dismiss the second
petition without prejudice because Mr. Gard did not obtain
permission from the Eighth Circuit to file the second
petition. (Docket 11 at p. 4). In his objections to the
R&R, Mr. Gard restates the merits of his petition but
does not state he obtained permission from the Eighth Circuit
to file the petition. (Docket 12).
law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. §
2254, and a complaint under the Civil Rights Act of 1871 . .
. 42 U.S.C. § 1983. Challenges to the validity of any
confinement or to particulars affecting its duration are the
province of habeas corpus . . .; requests for relief turning
on circumstances of confinement may be presented in a §
1983 action.” Muhammad v. Close, 540 U.S. 749,
a second or successive [petition for a writ of habeas corpus]
is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the [petition].” 28 U.S.C.
Gard's petition presents two distinct issues. First, he
explicitly seeks habeas relief, “fil[ing] this
subsequent petition for writ of habeas corpus based on an
actual innocence claim as well as [an] ineffective assistance
of trial, appeal, and habeas counsel” claim. (Docket 1
at ¶ 2). Second, Mr. Gard asserts the South Dakota
Department of Corrections and prison officials are violating
his constitutional right to access legal materials.
Id. at ¶¶ ...