United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Diaw Kiir, filed a petition for writ of habeas corpus under
28 U.S.C. § 2254. The matter was referred to Magistrate
Judge Veronica L. Duffy for a report and recommendation and
she recommended dismissing the petition without prejudice.
Petitioner filed an objection to the report and
recommendation. For the following reasons, the court adopts
Magistrate Judge Duffy's report.
was convicted at a jury trial of two counts of simple assault
against law enforcement, possession of a controlled
substance, possession of a controlled substance while armed,
simple assault against law enforcement while armed,
possession of a firearm with an altered serial number,
possession of a firearm by a person with one prior drug
conviction, and grand theft. After he was convicted, but
before he was sentenced, Kiir filed his first of three §
2254 petitions in this court on November 3, 3015. See
Kiir v. Gromer, 4:15- cv-04168-KES, Docket 1 (D.S.D.
2015). This court dismissed the petition explaining to Kiir
that he needed to exhaust his state remedies before a federal
court can entertain a state prisoner's habeas petition.
Id., Dockets 5, 10 and 11.
was then sentenced in state court. He appealed his conviction
and sentence to the South Dakota Supreme Court raising four
issues. His conviction and sentence on all issues were
affirmed. State v. Kiir, 900 N.W.2d 290, 299 (S.D.
then filed a habeas petition in South Dakota state court
raising multiple ineffective assistance of counsel claims.
While that petition was pending, Kiir filed his second §
2254 petition in this court, raising a confrontation clause
issue not contained in his state habeas petition. See
Kiir v. Young, 4:18-cv-4096-KES, Docket 1. The
confrontation clause issue was exhausted, because he raised
the issue in his direct appeal. The federal petition,
however, did not include his ineffective assistance of
counsel claims. After respondent explained to Kiir that if he
proceeded and obtained a ruling from the federal court on the
merits of his confrontation clause claim, he may then be
prohibited from later bringing his ineffective assistance of
counsel claims in federal court because it would be a second
or successive petition and the permission of the Eighth
Circuit Court of Appeals would be required before he would be
allowed to file another petition for habeas relief under 28
U.S.C. § 2254. Id., Docket 9 at 10. Kiir
subsequently made a motion to voluntarily dismiss his federal
petition, stating that he now understood he “was to
bring all of my claims exhausted at one time.”
Id., Dockets 11 and 15. The district court dismissed
Kiir's second federal habeas petition without prejudice
for failure to exhaust. Id., Dockets 17 and 18.
third § 2254 petition was filed by Kiir a few months
later. Docket 1. Kiir now alleges both his ineffective
assistance of counsel claims and his confrontation clause
issue. Id. He acknowledges that his first habeas
petition was filed in state court, but he does not indicate
whether the state circuit court or the state supreme court
have ruled on the claims in his state petition. Id.
at 3-5. Respondents move to dismiss Kiir's third federal
petition because it contains unexhausted claims. Docket 8. In
Kiir's resistance to the motion, he admits his claim is
still pending before the state circuit court and that he is
“in the process of exhausting [his] state
remedies.” Docket 10 at 20-21.
Judge Duffy recommends that respondents' motion to
dismiss be granted because Kiir has failed to exhaust his
state remedies and that the dismissal should be without
prejudice. Kiir filed a timely objection to the report and
recommendation and contends that it would be futile for him
to return to the South Dakota Supreme Court. Docket 16 at 2,
court's review of a magistrate judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. Under 28 U.S.C.
§ 636(b)(1), the court reviews de novo any objections to
the magistrate judge's recommendations with respect to
dispositive matters that are timely made and specific.
See Fed. R. Civ. P. 72(b) (“The district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”). In
conducting its de novo review, this 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); see also United
States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
petitioner cannot pursue a federal habeas petition on an
underlying state court conviction without exhausting his
claims in state court first. 28 U.S.C. § 2254(b) and
(c); see also O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To exhaust an available state
post-conviction remedy, the petitioner must “use the
State's established appellate review procedures.”
O'Sullivan, 526 U.S. at 845. The federal habeas
court must defer action until the claim is exhausted when a
state court remedy is available for a state prisoner's
unexhausted claim. Armstrong v. Iowa, 418 F.3d 924,
925 (8th Cir. 2005). But “if no state court remedy is
available for the unexhausted claim-that is, if resort to the
state courts would be futile-then the exhaustion requirement
in § 2254(b) is satisfied, but the failure to exhaust
‘provides an independent and adequate state-law ground
for the conviction and sentence, and thus prevents federal
habeas corpus review of the defaulted claim, unless the
petitioner can demonstrate cause and prejudice for the
default' (or actual innocence . . .).” Id.
at 926 (quoting Gray v. Netherland, 518 U.S. 152,
contends that it would be futile for him to return to state
court on his ineffective assistance of trial counsel claim
for failure to move for judgment of acquittal on counts 6 and
7 because the South Dakota Supreme Court already found there
was sufficient evidence to uphold his conviction on Count 7.
Docket 16 at 2. To determine futility, the court does not
hypothesize about how the South Dakota Supreme Court will
rule. Rather the question is whether Kiir has a state court
remedy that is available to him or whether Kiir is precluded
from presenting this issue to the state court because of a
procedural bar. Here, there is no procedural bar-in fact the
issue is already pending before the state court. As a result,
Kiir has a state court remedy and has not met his burden to
show that it would be futile for him to return to state court
to exhaust his state court remedies.
the court finds that Kiir has a mixed petition, the federal
habeas court must defer action until the unexhausted claim is
exhausted. Armstrong, 418 F.3d at 925. The action
can be deferred either by dismissing the federal petition
without prejudice or by using the “stay and abeyance
procedure described in Rhines v. Weber, 544 U.S. 269
(2005). Here, the court adopts the recommendation of
Magistrate Judge Duffy to dismiss this matter without
prejudice. This is the third petition that Kiir has filed
without first exhausting. He offers no excuse for ...