United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Joshua Jay Blaine, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket
The government now moves to dismiss the petition for lack of
jurisdiction and failure to state a claim. Docket 40. The
matter was referred to United States Magistrate Judge
Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B) and
this court's October 16, 2014 standing order. Magistrate
Judge Duffy recommends that Blaine's motion be dismissed.
Docket 45. Blaine filed a new motion for a stay of
proceedings under 28 U.S.C. § 2255 and timely filed his
objections to the report and recommendation. Docket 51;
Docket 53. For the following reasons, the court adopts
Magistrate Judge Duffy's report and recommendation,
dismisses Blaine's motion, and denies Blaine's motion
for a stay of proceedings.
factual background was provided by the magistrate judge in
her report and recommendation. Docket 45 at 2-5. Thus, this
court will only give a simple explanation and point to the
magistrate judge's report and recommendation for the full
pleaded guilty to the crime of being a felon in possession of
two firearms. See Cr. Docket 19. The district court
sentenced him to 115 months in prison. Cr. Docket 40. Blaine
appealed, and the Eighth Circuit Court of Appeals affirmed
his conviction. Cr. Docket 52. Attorney Timothy Langley
represented Blaine in the district court. Cr. Docket 14.
Attorney James Eirinberg represented Blaine during his
appeal. Cr. Docket 50.
October 2, 2017, Blaine filed a pro se motion to
vacate, set aside, or correct his sentence under 28 U.S.C
§ 2255. Docket 1. First, Blaine alleged that police
conduct in searching his hotel room violated his Fourth and
Fourteenth Amendment rights. Id. at 5, 8-14. Second,
Blaine alleged that his trial and appellate counsel were
ineffective for several reasons, including failing to raise
Fourth Amendment violations, failing to suppress evidence,
failing to allow Blaine to review the presentence report,
advising Blaine not to withdraw his plea, failing to object
to the probation officer's denial of acceptance of
responsibility, and failing to allow Blaine to cooperate with
the government. Id. at 5, 15-20.
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. The court reviews
de novo any objections to the magistrate judge's
recommendations as to dispositive matters that are timely
made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). 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)(C);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.
Fourth Amendment Claims
objects to Magistrate Judge Duffy's report and
recommendation on the Fourth Amendment issue. Docket 53 at
3-5. Blaine argues that the validity of the search of his
hotel room after his arrest was not fully adjudicated.
Id. at 3. Blaine raises one objection as to this
issue, alleging that his right to appeal was frustrated by
his appellate attorney's failure to include the correct
pro se supplemental brief file. Id.
§ 2255 motion is the “statutory analogue of habeas
corpus for persons in federal custody.” Poor
Thunder v. United States, 810 F.2d 817, 821 (8th Cir.
1987). A federal prisoner may seek relief from his sentence
on the grounds that “the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack[.]” 28 U.S.C. § 2255(a); see also Hill
v. United States, 368 U.S. 424, 426-27 (1962). Relief
may be granted under § 2255 only for
“transgressions of constitutional rights and for a
narrow range of injuries that could not have been raised on
direct appeal and, if uncorrected, would result in a complete
miscarriage of justice.” Walking Eagle v. United
States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (internal
§ 2255 petition is not a second direct appeal and issues
raised for the first time in a § 2255 petition are
procedurally defaulted.” Meeks v. United
States, 742 F.3d 841, 844 (8th Cir. 2014). When a
petitioner asserts a claim that is procedurally defaulted,
the claim can only proceed if the petitioner can show either
that the procedural default should be excused because (1)
there was both cause for the default and actual prejudice to
the petitioner or (2) because the petitioner can show actual
innocence. Bousley v. United States, 523 U.S. 614,
issues not raised before a magistrate cannot be later raised
in objections to that magistrate's report and
Courts routinely hold that while the Magistrate Judge Act, 28
U.S.C. § 631 et seq., permits de novo
review by the district court if timely objections are filed,
absent compelling reasons, it does not allow parties to raise
at the district court stage new arguments or issues that were
not presented to the magistrate.
Vice v. Dooley, No. 5:14-CV-05076-JLV, 2015 WL
5773403, at *4 (D.S.D. Sept 29, 2015) (internal quotation
omitted). A party raising new arguments in an objection to a
magistrate's report and recommendation must show that a
“manifest injustice” would result from the
district court's failure to hear those arguments.
Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000).
§ 2255 motion, Blaine argued that his Fourth Amendment
rights had been violated by an illegal search. Docket 1 at 5.
He challenged the search on several grounds, alleging an
unreasonable search and seizure when law enforcement found
firearms and drugs in his hotel room after his arrest.
Id. at 8-14. None of these issues were raised in
Blaine's direct appeal. See Cr. Docket 52 at 2.
Because these issues should have been raised on direct
appeal, they are procedurally defaulted. Meeks, 742
F.3d at 844. Magistrate Judge Duffy found no showing
of actual innocence or cause for the default and actual
prejudice to overcome the procedural default. Docket 45 at
objection to the report and recommendation, Blaine argues
that these claims have not been procedurally defaulted.
Docket 53 at 7. He claims that he attempted to bring these
issues up in his pro se supplemental appellate brief
that his appellate attorney agreed to file on his behalf, but
his document never reached the Eighth Circuit Court of
Appeals. Id. at 3. Instead, a document signed by a
different prisoner describing an unrelated civil motion was
filed by his appellate attorney. See Docket 53-4.
Blaine believes that this explains why his appellate counsel
and the Eighth Circuit had such trouble understanding his
supplemental brief. Docket 53 at 3.
a new argument, first raised in Blaine's motion to stay
and then in his objections to the report and recommendation,
both of which came after the report and recommendation
itself. Docket 51 at 2-3; Docket 53 at 3. New arguments
cannot be raised in objections to a magistrate's report
and recommendation “absent compelling reasons[.]”
Vice, 2015 WL 5773403, at *4 (internal quotation
omitted). If Blaine did not discover this document issue
until after the report and recommendation was issued, it
might constitute a compelling reason to allow this objection,
but Blaine does not clearly indicate when he first discovered
the issue. But because this objection can be quickly
determined on the merits, the court will consider it.
Fourth Amendment claims require a showing of actual innocence
or cause for the default and actual prejudice to overcome
procedural default after he failed to raise the claims on
direct appeal. Bousley, 523 U.S. at 622. Blaine
makes no showing of actual innocence. The document issue
raised in his objection to the report and recommendation
provides cause for his procedural default. But he cannot
overcome the actual prejudice requirement. Blaine entered a
voluntary, knowing, and intelligent plea of guilty.
See Cr. Docket 19 ¶ 14; Cr. Docket 46 at 2-10.
A guilty plea cuts off all constitutional claims that predate
that plea. Tollett v. Henderson, 411 U.S. 258, 267
(1973). The Eighth Circuit would have dismissed Blaine's
Fourth Amendment claim for this reason. See Class v.
United States, 138 S.Ct. 798, ...