Creek v. Weber

• Decision Date: 10 February 2009
• Docket Number: No. CIV 08-3003.,CIV 08-3003.
• Citation: 598 F.Supp.2d 1004
• Parties: Clayton Sheldon CREEK, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

598 F.Supp.2d 1004

Clayton Sheldon CREEK, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.

No. CIV 08-3003.

United States District Court, D. South Dakota, Central Division.

February 10, 2009.

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Clayton Sheldon Creek, Sioux Falls, SD, pro se.

Craig M. Eichstadt, Assistant Attorney General, Pierre, SD, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER OF DISMISSAL

CHARLES B. KORNMANN, District Judge.

Petitioner pleaded guilty to two counts of forgery in the Second Judicial Circuit, Minnehaha County, South Dakota, on October 19, 2004. He was sentenced on November 12, 2004, to ten years imprisonment¹ on both counts to run consecutively to each other and consecutive to the term he was currently serving for a 2000 rape conviction. Petitioner did not appeal his convictions and sentences to the South Dakota Supreme Court. Petitioner filed a pro se petition for a writ of habeas corpus in Minnehaha County on February 2, 2005, challenging his forgery convictions. Counsel was appointed and an amended petition and second amended petition were filed. The petition for habeas relief was denied on April 16, 2007.

Petitioner submitted a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on December 30, 2008, Doc. 51. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636.

Petitioner did not file any formal objections but he did file "petitioner's handwritten statement of case under the unreasonable . . . application clause," Doc. 53, and an "affidavit in support of motion to dismiss the respondents (sic) request attempting to deny petitioner relief," Doc. 55. I will construe those documents as objections to the report and recommendation.

I have conducted a de novo review of the record. I do not, of course, conduct a de novo review of the factual and legal determinations as made by the state courts. I do consider whether the state courts' adjudications "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Judge Moreno adequately and correctly sets forth the standards to be applied in this proceeding.

Petitioner contends that his conviction and imprisonment resulted from the use of perjured testimony and the suppression of evidence favorable to him. He acknowledges that these claims are procedurally defaulted but contends that he is nonetheless entitled to habeas relief. Petitioner pleaded guilty and therefore waived any claim of deprivation of rights that occurred prior to the entry of his pleas. Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir.1994).

Petitioner does not object to the magistrate's statement that he did not file a direct appeal of his forgery convictions but instead states that he was prevented from filing an appeal. That is not true. Petitioner had previously, on February 2, 2004, been sanctioned by the South Dakota Supreme Court for his frequent filing of frivolous documents. Specifically excluded from that order were papers in any criminal case in which he was a defendant, if such papers were filed by an attorney on his behalf or if approved by the Court as procedurally appropriate. He was not prevented from filing a direct appeal.

Petitioner asserts that he was entitled to a hearing to determine whether he was competent to assist in his defense. I have reviewed the record in this regard and agree with the magistrate that the state court habeas court's findings in this regard were neither contrary to nor involved an unreasonable application or determination of federal law. The state habeas court did obtain a psychological evaluation of the defendant and determined that the defendant was not insane at the time he committed the forgery offenses and was competent to assist in his defense of those charges. Petitioner has not carried his burden to show that the trial court should have had sufficient doubt about his competence when he entered his guilty pleas. Weisberg v. Minnesota, 29 F.3d at 1276.

Petitioner objects to the magistrate's handling of the briefing scheduling orders. The magistrate was within his authority to grant extensions of time for the filing of briefs. Petitioner was not prejudiced thereby.

The petition should be denied. The report and recommendation should be adopted. All objections of the defendant should be overruled.

Now, therefore,

IT IS ORDERED, as follows:

1. The petition for a writ of habeas corpus, Doc. 1, is denied and dismissed with prejudice.

2. The report and recommendation, Doc. 51, is adopted.

3. Petitioner's objections, Docs. 53 and 55, are overruled.

4. Petitioner's motions, Docs. 27, 31, 33, 37, 38, 43, and 50, are denied.

2009 DSD 1

REPORT AND RECOMMENDATIONS FOR DISPOSITION OF PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

MARK A. MORENO, United States Magistrate Judge.

[¶ 1] The above-captioned 28 U.S.C. § 2254 case was referred to this Court by the District Court¹ pursuant to 28 U.S.C. § 636(b)(1)(B) for purposes of appointing counsel, if appropriate, conducting necessary hearings, including an evidentiary hearing, and submitting to the latter court, proposed findings of fact and recommendations for disposition of the case.

[¶ 2] After careful review of the records on file, including the state court filings and transcripts in Minnehaha County CR. No. 04-3027 and CIV. No. 05-3027, Pennington County CR. No. 99-2662 and South Dakota Supreme Court Nos. 24468 and 24510, and based on the totality of the circumstances present, the Court does now make the following findings of fact and report and recommendations for disposition in accordance with the District Court's referral order.

I.

[¶ 3] Petitioner, Clayton Sheldon Creek ("Creek"), challenges his two state forgery convictions under § 2254. These convictions occurred on November 12, 2004, after Creek pled guilty to two counts of forgery as part of a plea bargain.

[¶ 4] Creek was originally charged by complaint with two counts of forgery (in violation of SDCL 22-39-36 (1976)) and two counts of offering a false instrument for recording (contrary to SDCL 22-11-23.1 (1978)). Subsequently, Creek was arrested on the complaint and appointed counsel. Later, an indictment (charging two of the four offenses) and a superseding indictment (charging all four offenses) were filed.

[¶ 5] Creek was arraigned on each of the indictments. Creek's initial arraignment took place on August 16, 2004. At that time, he was advised of his constitutional and statutory rights, the charges he had been indicted on, as well as the allegations in a habitual offender information that had been filed that day, the maximum penalties he faced by virtue of the charges and being a habitual offender, and was informed that his sentences could be doubled because he was alleged to have been a prisoner at the time he committed the offenses. By way of counsel, Creek entered not guilty pleas to both charges.

[¶ 6] Thereafter, Creek was arraigned on the superseding indictment as well as the habitual offender information and was once more advised of his rights, the charges and allegations against him, and the potential penalties he faced, including those triggered by the information and under SDCL 22-6-5.1 (1978). Creek, again through counsel, entered not guilty pleas to all four charges.

[¶ 7] On October 19, 2004, Creek appeared for a change of plea hearing. Creek's counsel advised the trial court that a plea bargain had been reached and that Creek planned to plead guilty to counts I and III of the superseding indictment. The court informed Creek of what he was charged with, the maximum penalties he faced on each offense and of his rights. When the prosecutor interjected that Creek was subject to § 22-6-5.1's doubling statute (because Creek had committed a felony while in prison), Creek's counsel, and Creek himself, acknowledged that they understood this.

[¶ 8] Trial counsel next explained the terms of the plea bargain. The prosecutor agreed that she would dismiss the habitual offender information and would also dismiss counts II and IV, charging Creek with filing false documents. In return, Creek would plead guilty to the two forgery offenses (counts I and III) and sentencing would be "open," meaning that the trial court could impose 10-year consecutive sentences on each of the two counts, but the defense was free to argue that both sentences should be concurrent with the sentence he was presently serving. The prosecutor and Creek both agreed that this was their understanding of the agreement.

[¶ 9] Following this, the trial court found that Creek had regularly been held to answer the charges against him, was represented by competent counsel, had been advised of the charges and of his constitutional and statutory rights, the pleas available to him and of the maximum penalties. The court also found that Creek understood the charges, his rights, his available pleas and the penalties he faced, that he was acting of his own free will and was competent to enter his pleas. Creek then proceeded to plead guilty to counts I and III of the superseding indictment and the prosecutor offered a factual basis for the pleas, based principally on Creek's admissions to law enforcement. Creek agreed with the prosecutor's recitation of the facts and the court accepted Creek's pleas, finding that they were voluntary and intelligent.

[¶ 10] Creek's sentencing was held on November 12, 2004. The prosecutor emphasized the seriousness of Creek's crimes and requested that he be sentenced to the maximum penalty of 10 years on each...