Ashker v. Leapley, 92-3749
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Writing for the Court | Before WOLLMAN and MORRIS SHEPPARD ARNOLD; WOLLMAN |
| Citation | 5 F.3d 1178 |
| Parties | Lewis E. ASHKER, Appellee, v. Walter LEAPLEY, Warden; Mark W. Barnett, Attorney General, State of South Dakota, Appellants. |
| Docket Number | No. 92-3749,92-3749 |
| Decision Date | 01 October 1993 |
Page 1178
v.
Walter LEAPLEY, Warden; Mark W. Barnett, Attorney General,
State of South Dakota, Appellants.
Eighth Circuit.
Decided Oct. 1, 1993.
John E. Haak, Pierre, SD, argued, for appellants.
Roberto A. Lange, Sioux Falls, SD, argued, for appellee.
Page 1179
Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and GUNN, * District Judge.
WOLLMAN, Circuit Judge.
The State of South Dakota appeals from a district court order granting Lewis E. Ashker federal habeas corpus relief under 28 U.S.C. Sec. 2254. Because we conclude that Ashker failed to exhaust his state court remedies, we reverse.
Ashker was convicted of first degree murder in the stabbing death of Jerry Plihal and was sentenced to life imprisonment. At trial, the State introduced the deposition of Sharon Novaock, the wife of Ashker's co-defendant, Kurt Novaock. Sharon Novaock's testimony placed Ashker with Kurt Novaock on the afternoon of the murder. She also denied telling anyone that she had destroyed the blood-stained clothing that her husband wore on the day of the murder. The State then called Lisa Jensen, who testified that Sharon Novaock had told her that her husband had come home with blood on his clothes and boots and that she had burned them or thrown them away. The trial court twice admonished the jury that Jensen's testimony was not offered to prove the truth of the matter asserted, but only to impeach Sharon Novaock's credibility. The South Dakota Supreme Court affirmed Ashker's conviction on direct appeal, State v. Ashker, 412 N.W.2d 97 (S.D.1987), and denied his petition for post-conviction relief. Ashker v. Solem, 457 N.W.2d 473 (S.D.1990).
Ashker then filed the present habeas petition. 798 F.Supp. 590 (D.S.D.1992). The district court denied the State's motion to dismiss Ashker's petition for failure to exhaust state remedies on three of his five claims and granted the writ based on Ashker's first claim: that his conviction was obtained by impeachment of the State's own witness in violation of the confrontation clause of the Sixth Amendment. The court did not consider Ashker's remaining claims. The State argues on appeal that the district court erred in denying its motion to dismiss.
A state prisoner must exhaust available state court remedies before raising a claim in a federal habeas corpus proceeding. 28 U.S.C. Sec. 2254(b). Further, a district court "must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). 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. Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971). It is not enough that all the facts necessary to support a federal claim are before the state court or that the petitioner asserted a similar...
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Victor v. Hopkins, No. 4:CV94-3263.
...dismiss those claims without prejudice in order to allow petitioner to present them to the state courts. Rose, supra; Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993). If petitioner does not have a presently available state court remedy, but had one available to him at an earlier time a......
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Reeves v. Hopkins, No. CV90-L-311.
...any habeas corpus action, whether capital or not, it must have been "fairly presented" to the highest state court. See Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993); Laws v. Armontrout, 863 F.2d 1377 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 41......
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Springs v. Hobbs, No. 5:13CV00005 JLH
...the factual and theoretical substance of [the] claim.'" Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir. 1995) (quoting Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993)). "In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific feder......
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Satter v. Class, Civ. No. 96-1020.
...constitutional issue' in ... state court." Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir.) (en banc), (quoting Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993)), cert. denied, ___ U.S. ___, 116 S.Ct. 1838, 134 L.Ed.2d 941 (1996). The legal basis for a claim presented in state court mu......
-
Victor v. Hopkins, No. 4:CV94-3263.
...dismiss those claims without prejudice in order to allow petitioner to present them to the state courts. Rose, supra; Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993). If petitioner does not have a presently available state court remedy, but had one available to him at an earlier time a......
-
Reeves v. Hopkins, No. CV90-L-311.
...any habeas corpus action, whether capital or not, it must have been "fairly presented" to the highest state court. See Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993); Laws v. Armontrout, 863 F.2d 1377 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 41......
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Springs v. Hobbs, No. 5:13CV00005 JLH
...the factual and theoretical substance of [the] claim.'" Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir. 1995) (quoting Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993)). "In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific feder......
-
Satter v. Class, Civ. No. 96-1020.
...constitutional issue' in ... state court." Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir.) (en banc), (quoting Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir.1993)), cert. denied, ___ U.S. ___, 116 S.Ct. 1838, 134 L.Ed.2d 941 (1996). The legal basis for a claim presented in state court mu......