Doty v. Lund

• Court: U.S. District Court — Northern District of Iowa
• Writing for the Court: Bennett
• Citation: Doty v. Lund, 78 F.Supp.2d 898 (N.D. Iowa 1999)
• Decision Date: 22 November 1999
• Docket Number: No. C98-3012-MWB.,C98-3012-MWB.
• Parties: Reede Mitchell DOTY, Petitioner, v. Mark LUND, Warden, Respondent.

78 F.Supp.2d 898

Reede Mitchell DOTY, Petitioner, v. Mark LUND, Warden, Respondent.

No. C98-3012-MWB.

United States District Court, N.D. Iowa, Central Division.

November 22, 1999.

Teresa A. O'Brien, Sioux City, IA, for Petitioner.

Robert P. Ewald, Asst. Iowa Atty. Gen., Des Moines, IA, for Respondent.

ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

BENNETT, District Judge.

This petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 comes before the court on the October 6, 1999, Report and Recommendation of United States Magistrate Judge Paul A. Zoss. Because the petition was a "mixed petition," containing both exhausted and unexhausted claims, Judge Zoss recommended that the petition be dismissed without prejudice. Petitioner Doty filed objections to the Report and Recommendation on November 1, 1999. Therefore, the court must decide whether to accept, reject, or modify the recommended disposition of the case in light of Doty's objections. See 28 U.S.C. § 636(b)(1).

More specifically, in his Report and Recommendation, Judge Zoss concluded that Doty's petition for habeas corpus relief involved some claims that were procedurally defaulted, one claim that was immune to habeas corpus review, and only one claim that was procedurally exhausted and otherwise reviewable. First, Judge Zoss concluded that, to the extent that Doty had presented his claim of newly-discovered, exculpatory evidence to the Iowa courts in post-conviction relief (PCR) proceedings, he had done so as a challenge to state law and procedure, and that the claim was adjudicated as a matter of state law. Therefore, Judge Zoss concluded that this claim had not been "fairly presented" to the Iowa courts as a federal constitutional claim, and consequently was unexhausted and procedurally defaulted. Judge Zoss also concluded that Doty's claim of ineffective assistance of counsel had been raised either only vaguely or not at all in Doty's direct appeal and PCR proceedings, and thus was not exhausted and was now procedurally defaulted. Judge Zoss next concluded that Doty's claim of improper admission of polygraph evidence had been presented to Iowa courts as a question of state law and disposed of on that authority, and thus was immune to habeas corpus review. Judge Zoss found that Doty had not raised in any state-court proceeding his present contention that judicial bias and failure of the trial judge to recuse himself led to the improper admission of the polygraph evidence. The judicial bias argument is based on the revelation, in an unrelated decision of the Iowa Supreme Court, State v. Mann, 512 N.W.2d 528 (Iowa 1994), that the state-court judge who presided over the bench trial of the sexual abuse charges against Doty had himself been a victim of sexual abuse as a young teenager.¹ Judge Zoss concluded that the allegation of judicial bias was a separate claim that could not be raised for the first time in this court on habeas corpus review. Therefore, he concluded that this claim, as well as the entire claim founded on the admission of the polygraph evidence, was unexhausted and procedurally defaulted. Finally, Judge Zoss found that, unlike the other claims presented here, Doty's claim of an involuntary, coerced confession had been fully exhausted in state proceedings. Although this last claim was therefore reviewable on a petition for habeas corpus relief, Judge Zoss nonetheless concluded that all of the claims in Doty's "mixed petition," which contained exhausted and unexhausted claims, should be dismissed without prejudice, citing Murray v. Wood, 107 F.3d 629, 632 (8th Cir.1997).

Doty objects only to that part of Judge Zoss's Report and Recommendation recommending dismissal without prejudice of his claim of judicial bias and failure to recuse. Doty argues that, even though his PCR counsel was aware of the Mann case as it proceeded through the Iowa Supreme Court, and delayed pursuing a similar issue of judicial bias and failure to recuse in Doty's case pending appellate disposition of the claim in Mann, that approach was justified, as was counsel's decision not to raise the claim in any state-court proceeding after the decision of the Iowa Supreme Court in Mann was unfavorable to Doty's position. In these circumstances, Doty argues that this claim is not procedurally defaulted, because pursuing the claim in state court might have been deemed frivolous and might have subjected PCR counsel to sanctions. Doty also relies on a recent decision of another judge of this court granting habeas corpus relief to the defendant in Mann, notwithstanding the Iowa Supreme Court's refusal to grant that defendant any relief, arguing that Doty was in exactly the same position as the defendant in Mann. Returning to the question of procedural default, Doty asserts, without specific explanation, that he should be allowed to pursue habeas corpus relief under the exceptions to exhaustion established in 28 U.S.C. § 2254(b)(1)(B)(i) and 2254(b)(1)(B)(ii). Also without explanation, Doty asserts that his case "is a pre-Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 [case]," and, as a consequence, he is entitled to pursue his claim if he shows that attempts to exhaust state remedies would be "futile." In order to demonstrate "futility," Doty claims that there was "just no way" for him to pursue the judicial bias and recusal issue in state court at the time of his PCR application in light of Mann. He also argues that there is no sensible course to take in state court now, even in light of the habeas corpus relief granted to the defendant in Mann for several reasons. He argues that it will take an unreasonable amount of time to get the issue through the state courts, and the respondent will likely argue that a claim for PCR relief on this ground is untimely. He also argues that the viability of the issue by the time any PCR case reaches the Iowa Supreme Court is uncertain, since his claim may be "mooted" by a decision of the Eighth Circuit Court of Appeals on appeal of the habeas corpus relief granted to the defendant in Mann.

The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].

28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860, 117 S.Ct. 164, 136 L.Ed.2d 107 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). Because objections have been filed in this case, the court must conduct a de novo review.

However, the plain language of the statute governing review provides only for de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Therefore, the court concludes that it must make a de novo review only of the recommended dismissal of Doty's judicial bias and recusal claim, because it is only to the portion of the Report and Recommendation regarding this claim that Doty has made objections.

The court has made the necessary review by examining the record considered by Judge Zoss in light of Doty's objections to Judge Zoss's Report and Recommendation. The court concludes that Doty's objections must be overruled and Judge Zoss's Report and Recommendation accepted.

Section 2254, as amended by the AEDPA, provides for exhaustion of state remedies, and exceptions to the exhaustion requirement, as follows:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b).² Thus, "[a] state prisoner wishing to raise claims in a federal petition for habeas corpus ordinarily must first present those claims to the state court and must exhaust state remedies." Weeks v. Bowersox, 119 F.3d 1342, 1349 (8th Cir.1997) (en banc), cert. denied, 522 U.S. 1093, 118 S.Ct. 887, 139 L.Ed.2d 874 (1998). The petitioner has "the burden to show that all available state remedies ha[ve] been exhausted or that exceptional circumstances existed" making exhaustion unnecessary. See Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir.1998); accord Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir.1999) ("To satisfy the exhaustion requirement, [the petitioner] must show that he either made a fair presentation of his claims to the state courts or that he has no other presently available state remedies to pursue."). Claims are not exhausted — that is, have not been "fairly presented" to the state court — unless "the state court rules on the merits of [the petitioner's] claims, or [the petitioner] presents his claims in a manner that entitles him to a ruling on the merits." Gentry, 175 F.3d at 1083; see also 28 U.S.C. § 2254(c) (a claim is not exhausted if the petitioner "has the right under the law of the State to raise, by any available procedure, the question presented").

Doty does not challenge Judge Zoss's conclusion that his claim of judicial bias and failure to recuse is unexhausted. Doty...