United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING MOTIONS TO
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Claims and Procedural History
19-CV-4025, Petitioner Haider Salah Abdulrazzak (Abdulrazzak)
filed a Petition under 28 U.S.C. § 2254, challenging Ms
conviction after a jury trial in state court of 14 counts of
possession of child pornography and his sentence thereon.
19-CV-4025, Doc. 1. Specifically, Abdulrazzak contends in
grounds one and two of his petition that his trial counsel
provided ineffective assistance of counsel in not filing a
motion to suppress statements Abdulrazzak made, particularly
because Abdulrazzak's native language is Iraqi Arabic and
not English. Id. In ground three, Abdulrazzak
contends that he did not understand the Egyptian Arabic
language translator at trial and thereby was deprived of his
Sixth Amendment rights. Id. Ground four of the
petition contends that Abdulrazzak's trial counsel failed
to investigate potential alibi evidence of Abdulrazzak not
being near his computer when at least two of the pornographic
images were downloaded. Id. Abdulrazzak had appealed
his conviction and sentence, which were summarily affirmed by
the Supreme Court of South Dakota. 19-CV-4025, Doc. 1-6.
previously had filed a state court habeas corpus petition and
amended petition; the amended petition filed in his prior
state court habeas corpus action raised as its first four
grounds the same grounds listed in his federal § 2254
petition in 19-CV-4025, Doc. 1. See 19-CV-4025, Doc. 1-7.
State Circuit Court Judge Joseph Neiles denied Abdulrazzak
habeas corpus relief after an evidentiary hearing and
declined to issue a certificate of appealability.
Id. at Doc. 1-7, 1-9.
Abdulrazzak's filing of his federal habeas action in
19-CV-4025, this Court screened the petition and required a
response. Id. at Doc; 7. Defendants filed a Motion
to Dismiss the Application for Writ of Habeas Corpus, Doc. 8;
attached documents thereto, Docs. 9-1 through 9-10; and
arranged for filing of the state trial court records
including transcripts and certain exhibits. This Court
granted Abdulrazzak additional time to reply. Id. at
Doc. 13. Abdulrazzak filed a lengthy response raising many
assertions and arguments not framed by his federal §
2254 petition. Id. at Doc. 14. Abdulrazzak also
filed a Motion for Evidentiary Hearing, in which Abdulrazzak
requests both an evidentiary hearing and appointment of
counsel. Id. at Doc. 15.
second case in this Court, 19-CV-4075, involves a second
separate petition under 28 U.S.C. § 2254 challenging a
decision of the South Dakota Board of Pardons and Paroles
revoking his parole. 19-CV-4075, Doc. 1. In ground one,
Abdulrazzak contends a violation of his Fifth and Fourteenth
Amendment rights related to his refusal to admit matters
related to a treatment program. Id. In ground two,
he contends that a basis for revoking parole was not
supported by records or evidence. In ground three, he
contends that the board arbitrarily and capriciously modified
his conditions to make them harsher. Id.
Court screened the petition in 19-CV-4075 and required an
answer, hi at Doc. 5. Abdulrazzak failed to file a timely
notice of appeal to state circuit court from the Board's
decision, so he has filed a Motion to Excuse/Waive of
Exhaustion contending that state court exhaustion of his
claims would be futile, Id. at Doc. 4, as well as a
Motion to Supplement Record, id at Doc. 6.
Defendants filed a Motion to Dismiss, Id. at Doc. 7,
and a supporting memorandum, Id. at Doc. 8.
Abdulrazzak opposes the motion to dismiss, Id. at
Doc. 12, and has filed a Motion for Evidentiary Hearing,
Id. at Doc. 13. Abdulrazzak very recently filed a
Motion for Injunctive Order, Id. at Doc. 14, seeking
to be transferred to a "work release unit pending the
outcome of the petition," Id. at Doc. 14 at 1.
For the reasons explained herein, this Court dismisses both
cases, 19-CV-4025 and 19-CV-4075.
September of 2010, a grand jury in Minnehaha County, South
Dakota, indicted Abdulrazzak on 14 counts of possession of
child pornography in violation of SDCL § 22-24A-3.
Abdulrazzak pleaded not guilty, and his case was tried to a
jury in June of 2011.
computer activity had triggered an investigation by Minnehaha
County Sheriffs Department Detective Derek Kuchenreuther.
Detective Kuchenreuther was assigned to the Internet Crimes
Against Children division in the Minnehaha County Sheriffs
Office. J-Tl at 99. As part of his duties to investigate
child pornography on the internet, Detective Kuchenreuther
uses investigatory software designed to search for internet
protocol (IP) addresses that accessed child pornography. JT1
at 113. Upon finding an IP address identified as one
downloading illegal content, Detective Kuchenreuther
downloads files from that suspect IP address. Upon confirming
those files contain illegal content, Detective Kuchenreuther
can use the IP address to determine the physical location of
that computer. JT1 at 107.
December 8, 2009, Detective Kuchenreuther identified an IP
address offering a list of files containing terms consistent
with child pornography. JT1 at 113-14. The terms included
PTHC (which stands for preteen hard-core), Lolita (a common
search term for child pornography), young little girls, eight
yo, ten yo, and twelve yo (with "yo" standing for
years old). The files from the IP address at issue produced
pornographic images of young girls. JT1 at 116. Detective
Kuchenreuther determined that the IP address at question was
registered to Abdulrazzak and obtained a search warrant. TIT
at 107, 117-21.
weeks later, Detective Kuchenreuther went with other law
enforcement officers to Abdulrazzak's apartment
residence. JT1 at 121. After knocking on the door and
receiving no answer, Detective Kuchenreuther entered the
apartment through an unlocked balcony door. JT1 at 122.
Eventually, Detective Kuchenreuther and law enforcement made
contact with two residents of the apartment-Abdulrazzak and
his roommate Akeel Abed. JT1 at 122. Law enforcement found a
computer in each of the occupants' separate bedrooms. JT1
at 123. In Abdulrazzak's bedroom, law enforcement found
an external hard drive, CDs, DVDs, and thumb drives, as well.
JT1 at 123. As a part of the execution of the search warrant,
Detective Kuchenreuther operated equipment and software that
allowed him to make an exact duplicate of the hard drive of
Abdulrazzak's computer. JT1 at 108.
Kuchenreuther conducted a forensic examination of both
Abdulrazzak's and Abed's computers. That forensic
examination generated information regarding the images,
videos, dates, and time files created, as well as their
location on the hard drives. JT1 at 110-11, 133. The
examination of Abed's computer found no child pornography
on it. JT1 at 123. The examination of Abdulrazzak's
laptop and external hard drive revealed that at some point in
time that laptop contained a program called LimeWire. JT1 at
124. LimeWire is a free software available to the public and
used to download and share files such as music, videos, and
photographs. JT1 at 111-12.
enforcement interviewed Abdulrazzak in his apartment living
room. JT1 at 126. Law enforcement explained that Abdulrazzak
was not under arrest and did not have to speak with the
officers. Doc. 1-7 at 5. After being told why law enforcement
was investigating child pornography downloaded from his IP
address, Abdulrazzak admitted to using LimeWire to download
pornography. JT1 at 129. Upon being asked what search terms
he used, Abdulrazzak responded that he downloaded pornography
by using "young movies" as a search term. JT1 at
forensic examination uncovered 34 images in unallocated space
on the hard drive of Abdulrazzak's computer, JT1 at 132.
Detective Kuchenreuther believed that the 34 images displayed
prepubescent females based on the fact that the females
depicted had "no breast development, no pubic hair, just
small in stature." JT1 at 132. Abdulrazzak's
external hard drive contained 299 images and 8 videos which
had not been deleted. JT1 at 136. Detective Kuchenreuther
believed that almost all of the images and videos contained
child pornography. JT1 at 136.
Kuchenreuther then met with prosecutors to discuss which
images to charge Abdulrazzakas having in his possession. JT1
at 146-47. The prosecutor decided that Abdulrazzak would be
charged with 14 counts of possession of child pornography.
JT1 at 147. Five of those counts were based on images
obtained from the unallocated space on the laptop.
his statements to investigators, Abdulrazzak testified at
trial that he never used a computer to view child
pornography. JT2 at 64, 68. Abdulrazzak told the jury that
his computer was not password protected. JT2 at 67. He
testified that he had many visitors to his apartment and that
he allowed them to use his computer. JT2 at 65-66. During the
rebuttal case, however, a computer expert called by the
prosecution testified that Abdulrazzak's computer was
password protected. JT3 at 8. Moreover, the evidence
established that Abdulrazzak was not ...