Abdulrazzak v. Fluke, 4:20-CV-04154-RAL

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Docket Number4:20-CV-04154-RAL
Decision Date01 July 2021




July 1, 2021


Petitioner Haider Salah Abdulrazzak filed a petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. Doc. 1. Pending before this Court is Respondents' motion to dismiss and Petitioner's motions to grant habeas relief, for recusal, for an evidentiary hearing, and to strike. Docs. 12, 18, 20, 21, 25.

I. Motion for Recusal

Abdulrazzak moves for the recusal of the undersigned judge. Doc. 20. He claims that this judge's previous legal orders and opinions are incorrect. See Doc. 20. "A judge must recuse from 'any proceeding in which [the judge's] impartiality might reasonably be questioned.'" United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013) (alteration in original) (quoting 28 U.S.C. § 455(a)). This standard is objective and questions "whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case." Id. (quoting Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002)). The party that introduces the motion for recusal "carries a heavy burden of proof; a judge is presumed to be impartial and

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the party seeking disqualification bears the substantial burden of proving otherwise." Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003) (internal quotation omitted).

The party must show "that the judge had a disposition so extreme as to display clear inability to render fair judgment." Melton, 738 F.3d at 905 (cleaned up and citation omitted). Abdulrazzak bases his motion on allegations of ignorance of the law. Doc. 20. But "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994). A judicial ruling "cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal." Id. Here, Abdulrazzak's disagreement with prior rulings may be grounds for an appeal, but he has not shown that the undersigned judge is unable to be impartial or to render a fair judgment. Abdulrazzak has not met his burden. Thus, his motion for recusal, Doc. 20, is denied.

II. Motion to Dismiss

A. Factual Background1

In 2011, a state court jury found Abdulrazzak guilty of 14 counts of child pornography in violation of SDCL § 22-24A-3(3). Doc. 13-1. He was sentenced to 21 years in prison with 13 years suspended. Doc. 13-1. The Supreme Court of South Dakota affirmed his convictions. State v. Abdulrazzak, 828 N.W.2d 547 (S.D. 2013). In 2014, Abdulrazzak was released to the United States Immigration and Customs Enforcement. Doc. 13-2 at 2. He returned to South Dakota in 2016 and signed a new parole supervision agreement. Doc. 13-2 at 2.

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Four months later, Abdulrazzak was accused of violating conditions of his parole, and a hearing was held before the South Dakota Board of Pardons and Paroles (Board) on March 13, 2017. Abdulrazzak v. South Dakota Bd. of Pardons and Paroles, Civ. No. 17-1519, 3-5 (Second Judicial Circuit, Mar. 13, 2017).2 The Board determined that Abdulrazzak had violated the conditions of his parole so his parole was revoked. Id. The Board's amended order and notice of entry was served on Abdulrazzak on April 21, 2017. Id. at Notice of Entry of Order and Certificate of Service, 6 (Apr. 21, 2017). Abdulrazzak served the Board with his notice of appeal on May 10, 2017. Id. at Certificate of Service, 10 (Filed on May 25, 2017). His notice of appeal was filed with the court on May 25, 2017. Id. at Statement of Issues; Verified Motion and Order to Waive Fees and Costs and to Appoint Counsel, 7-8 (May 25, 2017). Appellee filed a motion to dismiss and asserted that Abdulrazzak's appeal was untimely under SDCL § 1-26-31. Id. at Motion to Dismiss, 16 (June 5, 2017).

Abdulrazzak, through his attorney, argued that he gave prison staff his appeal documents on May 10, 2017, and the prison staff failed "to even get the filing to the clerk . . . Prison staff was able to serve the Board but [w]ere unable to provide the same documents to the clerk of courts." Id. at Brief in Opposition to Motion for Dismissal, 29-31 (June 15, 2017). A hearing was held on June 4, 2018, before the Honorable Lawrence Long, a judge for the Second Judicial Circuit for the State of South Dakota. Id. at Notice of Hearing and Certificate of Service, 47 (Apr. 24, 2018). A transcript of the hearing is not in the record. Abdulrazzak filed a motion for reconsideration, which Judge Long reviewed on June 15, 2018. Id. at Appellant Motion and Brief for Reconsider, 50-53 (June 15, 2018). In his motion for reconsideration, Abdulrazzak asked the state court to re-examine

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the evidence he presented and hold that his appeal was timely mailed, and any late filing was the clerk's error. Id. at 51.

On June 27, 2018, Judge Long granted Appellee's motion to dismiss and held that Abdulrazzak's appeal was untimely under SDCL § 1-26-31, declaring that he had considered the "written and oral arguments of the parties . . . ." Id. at Order Granting Motion to Dismiss, 66 (June 27, 2018). Abdulrazzak filed a notice of appeal to the Supreme Court of South Dakota. Id. at Notice of Appeal, 74 (July 25, 2018). The opinion of the Supreme Court of South Dakota stated in its "Facts and Procedural History" section that "on May 25, the Minnehaha County Court received and filed Abdulrazzak's pro se notice of appeal" and noted that "there is no separate evidentiary record establishing the date as May 10, 2017." Id.; Abdulrazzak v. Board of Pardons and Paroles, 940 N.W.2d 672, 676 n. 2 (S.D. 2020). The Supreme Court of South Dakota accordingly affirmed Judge Long's dismissal of Abdulrazzak's case. CIV. No. 17-1519, Judgment, 123 (Apr. 2, 2020).

Abdulrazzak filed a petition for rehearing/reconsideration to the Supreme Court of South Dakota and claimed that "evidence in[] the record established" the May 10, 2017 notice of appeal filing date and that "it was the circuit court who did not sign it until May 25. 2017." Case No. 28685,3 Appellant's Petition for Rehearing/Reconsideration, 160 (March 13, 2020). Further, Abdulrazzak asserted in his petition for rehearing that the prison admitted that they received the appeal and mailed it out on May 11, 2017. Id. at 161. "It is unreasonable therefore for this Court to determine in its finding of facts . . . that Abdulrazzak's notice of appeal was received by mail

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and filed 'by the clerk of court on May 25, 2017.'" Id. at 164-65. He further argues that the delay in filing his notice was due to the delay and oversight by the clerk of court. Id. at 165.

The Supreme Court of South Dakota denied Abdulrazzak's petition for rehearing and held that there was "no issue or question of law or fact appearing to have been overlooked or misapprehended . . . ." Id. at Order Denying Petition for Rehearing, 175-76 (March 31, 2020). Abdulrazzak filed his present writ for habeas corpus on October 21, 2020. Doc. 1. Respondents move to dismiss and argue that Abdulrazzak procedurally defaulted his claims and cannot show cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default. Doc. 12 at 1.

B. Legal Analysis

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies. 28 U.S.C. § 2254(b). Exhaustion requires giving the state courts "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" before presenting the issues in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also 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). "A claim is considered exhausted when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim." Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)).

A petitioner's failure to properly exhaust state court remedies "in accordance with state procedure results in procedural default of the prisoner's claim." Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010) (citing O'Sullivan, 526 U.S. at 848). When a prisoner does not properly exhaust his claims in state court, his claims are procedurally defaulted and the federal court is

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generally barred from hearing the claims. See Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc); Wiegers v. Weber, 37 F. App'x 218, 219-20 (8th Cir. 2002) (per curiam). Interests of comity and federalism underlie the procedural default doctrine. Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). A petitioner's procedurally defaulted claims are barred from federal review unless...

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