United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING PETITION
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
January 14, 2019, Petitioner William Martin Ardene DeCory,
filed a Petition for Writ of Habeas Corpus by a Person in
State Custody Pursuant to 28 U.S.C. § 2254. Doc. 1.
DeCory also requests that the court waive the filing fee.
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, this Court is to screen such
petitions and dismiss such petitions if "it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court." A prerequisite for filing a § 2254 petition
in federal court is that the state courts had the opportunity
to hear federal constitutional claims and adjudicate those
claims on the merits. See Weaver v. Bowersox, 438
F.3d 832, 839 (8th Cir. 2006) (a petitioner's claims must
be adjudicated on the merits by a state court). Accordingly,
an applicant may only file a § 2254 petition once he has
exhausted state court remedies for the issues presented.
See 28 U.S.C. § 2254(b)(1)(A). A petitioner has
not exhausted state court remedies if he "has the right
under the law of the State to raise, by any available
procedure, the question presented." See 28
U.S.C. § 2254(b)(3)(c).
clear from the record that DeCory has not exhausted available
state court remedies for his § 2254 claims and has not
satisfied the exhaustion requirement of § 2254(b)(1)(A).
In his petition, DeCory states that he filed a direct appeal
of his conviction but later moved to dismiss his appeal.
See Docs. 1 at 5, 9-15; 1-1 at 2. On June 30, 2016,
the South Dakota Supreme Court granted DeCory's motion to
dismiss his appeal. Doc. 1-1 at 1.
subsequently attempted to file a pro se appeal to the South
Dakota Supreme Court. See Docs. 1 at 8; 1-1 at 3-4.
Seventh Judicial Circuit Court Judge Robert Gusinsky then
wrote DeCory a letter informing DeCory that the Court
received his notice of appeal. Doc. 1 -1 at 1. Judge Gusinsky
informed DeCory that the time to appeal his judgment had
passed and no action would be taken on his appeal.
Id. Judge Gusinsky further informed DeCory that he
previously appealed his judgment and then requested a
has not filed a state habeas petition. See Doc. 1 at
7, 9-11. Thus, neither the circuit court nor the state
supreme court had the opportunity to fairly consider
DeCory's habeas claims, to resolve any constitutional
issues, and to provide redress, if appropriate.
courts must engage in a four-step analysis prior to reviewing
§ 2254 petitions that contain unexhausted claims.
Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir.
Federal courts must conduct a four-step analysis to determine
whether a petition may be considered when its claims have not
been presented to a state court. See Laws v.
Armontrout, 834 F.2d 1401, 1412-15 (8th Cir. 1987).
First, the court must determine if the petitioner fairly
presented "the federal constitutional dimensions of his
federal habeas corpus claim to the state courts."
Id. at 1412. If not, the federal court must
determine if the exhaustion requirement has nonetheless been
met because there are no "currently available,
non-futile state remedies", through which the petitioner
can present his claim. Id. If a state remedy does
not exist, the court next determines whether the petitioner
has demonstrated "adequate cause to excuse his failure
to raise the claim in state court properly."
Id. at 1415. If the petitioner can show sufficient
cause, the final step is to determine whether he has shown
"actual prejudice to his defense resulting from the
state court's failure to address the merits of the
claim." Id. The petition must be dismissed
unless the petitioner succeeds at each stage of the analysis.
explained already, DeCory did not fairly present his §
2254 claims to the state courts for adjudication. This Court
must then consider whether there are no available, non-futile
state court remedies through which DeCory may present his
unexhausted claims." 'Only after some clear
manifestation on the record that a state court will not
entertain petitioner's constitutional claims even if
fairly presented will the exhaustion requirement be
disregarded as futile.'" Id. at 297
(quoting Easton v. Wyrick, 528 F.2d 477, 482 (8th
Cir. 1975)). The correct inquiry focuses on whether state law
has a presently-available procedure for determining the
merits of the petitioner's claim, not whether the state
would decide in favor of the petitioner. Snethen v.
Nix, 736 F.2d 1241, 1245 (8th Cir. 1984).
has recourse through a state habeas action. South Dakota
Codified Law § 21-27-1 provides the following:
Any person committed or detained, imprisoned or restrained of
his liberty, under any color or pretense whatever, civil or
criminal, except as provided herein, may apply to the Supreme
or circuit court, or any justice or judge thereof, for a writ
of habeas corpus.
SDCL § 21-27-1. South Dakota Codified Law §
21-27-3.1 sets out the time period during which a state
prisoner may file a state habeas petition.
An application for relief under this chapter may be filed at
any time except that proceedings thereunder cannot be
maintained while an appeal from the applicant's
conviction and sentence is pending or during ...