Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gard v. Fluke

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

July 9, 2019

REX GARD, Petitioner,
v.
BRENT FLUKE, Warden, Mike Durfee State Prison; JASON RAVNSBORG, [1] Attorney General, Respondents.

          ORDER

          JEFFREY VIKEN CHIEF JUDGE

         INTRODUCTION

         Petitioner 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).

         Pursuant 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 a stay.

         DISCUSSION

         I. Procedural History

         Mr. 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).

         Mr. 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).

         The 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).

         II. Legal Standard

         “Federal 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, 750 (2004).

         “Before 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. § 2244(b)(3)(A).

         III. Analysis

         Mr. 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 ΒΆΒΆ ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.