Boss v. Ludwick
| Decision Date | 01 May 2012 |
| Docket Number | No. C 11–4014–MWB.,C 11–4014–MWB. |
| Parties | Donald L. BOSS, Jr., Petitioner, v. Nick LUDWICK, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
OPINION TEXT STARTS HERE
Rockne Cole, Iowa City, IA, for Petitioner.
Richard J. Bennett, Iowa Attorney General, Des Moines, IA, for Respondent.
Should this action pursuant to 28 U.S.C. § 2254 be stayed to give a state prisoner a chance to exhaust state remedies on unexhausted claims, where the unexhausted claims are (or appear to be) barred by the applicable state statute of limitations? In a report and recommendation, a magistrate judge concluded that a stay should be denied and the unexhausted claims dismissed. The prisoner objects, arguing, inter alia, that the state court, rather than this federal court, should decide whether his admittedly unexhausted claims are now time-barred. The prisoner's objections have triggered my obligation to consider the question de novo.
On December 12, 2002, petitioner Donald L. Boss, Jr., was convicted, in the Iowa District Court for Plymouth County, of the first-degree murder of his son, Timothy, in violation of Iowa Code § 707.2. On December 16, 2002, he was sentenced to life imprisonment without possibility of parole. He appealed. On January 28, 2004, the Iowa Court of Appeals affirmed Boss's conviction. See State v. Boss, 796 N.W.2d 458, 2004 WL 137627 (Iowa Ct.App.2004) (slip op.). Boss sought further review by the Iowa Supreme Court, but that request was denied on April 23, 2004, and his conviction became final on April 28, 2004.
On March 11, 2005, Boss filed an application for post-conviction relief in the Iowa District Court for Plymouth County, but that application was denied on August 28, 2008. Boss appealed the denial of post-conviction relief, the Iowa Court of Appeals affirmed on August 11, 2010, see Boss v. State, 789 N.W.2d 165, 2010 WL 3155198 (Iowa Ct.App.2010) (slip op.), and the Iowa Supreme Court denied further review on October 21, 2010. Procedendo on the denial of post-conviction relief issued on November 8, 2010.
On November 15, 2010, Boss commenced this federal action by filing a pro se Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (§ 2254 Petition) (docket nos. 1 and 9) in the United States District Court for the Southern District of Iowa. However, on January 20, 2011, this action was transferred to this district, which includes the county where Boss was convicted. See Order Transferring Case (docket no. 4).
Boss asserts five grounds for § 2254 relief. Ground One alleges that counsel provided ineffective assistance by disclosing the location of the victim's body during a bond review hearing. Ground Two alleges that counsel provided ineffective assistance by failing to investigate inconsistencies in the statements of Boss's children (, Boss's son, Claxton) and by failing to secure or investigate a tape recording of Boss's statement to Officer Bartolozzi, purportedly made while Officer Bartolozzi was transporting Boss to the station. Ground Three alleges that counsel provided ineffective...
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Boss v. Ludwick
...and including May 31, 2012, to file a brief on the merits of Grounds One, Three, and Four of his § 2254 Petition. See Boss v. Ludwick, 863 F.Supp.2d 845 (N.D.Iowa 2012).b. Proceedings on the merits After an extension of time to do so, Boss filed his Merits Brief (docket no. 44) on June 15, ......
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Wesling v. Tice
...procedural default of the challenged claims to allow them to be considered by the federal court pursuant to § 2254.” Boss v. Ludwick, 863 F.Supp.2d 845, 856 (N.D. Iowa 2012). If a petition contains both exhausted claims and procedurally defaulted claims, the Court may address the merits of ......
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Wesling v. Tice
... ... allow them to be considered by the federal court pursuant to ... § 2254.” Boss v. Ludwick, 863 F.Supp.2d ... 845, 856 (N.D. Iowa 2012) ... If a petition contains both exhausted claims and procedurally ... ...
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Wesling v. Tice
...default of the challenged claims to allow them to be considered by the federal court pursuant to § 2254." Boss v. Ludwick, 863 F. Supp. 2d 845, 856 (N.D. Iowa 2012) ("[T]he first question is not whether the Rhines factors warrant a 'stay and abeyance,' but whether the 'stay and abeyance' is......