Johnson v. Clark
| Decision Date | 22 October 2021 |
| Docket Number | 4:21-CV-04116-KES |
| Parties | CHARLES RAY JOHNSON, Petitioner, v. DOUG CLARK[1]; SOUTH DAKOTA ATTORNEY GENERAL, Respondents. |
| Court | United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota |
REPORT AND RECOMMENDATION
This matter is before the court on the pro se petition pursuant to 28 U.S.C. § 2254 of Charles Ray Johnson, an inmate at the South Dakota State Penitentiary. Docket No. 1. Now pending is a motion to dismiss for failure to state a claim upon which relief can be granted by respondents. Docket No. 7. This matter was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Court Judge.
The facts pertinent to the pending motion are as follows. There are three convictions at play in Mr. Johnson's criminal history:
Mr Johnson's petition alleges the South Dakota Board of Pardons and Parole (“Board”) violated his constitutional rights in connection with the revocation of his parole in grand theft #1. See Docket No. 1 at p 1. He does not raise any claims relating to the drug offense or grand theft #2, but those cases are relevant for context.
Mr Johnson pleaded guilty to grand theft #1 and was sentenced on January 5, 2018. Docket No. 8-3 at p. 1. The state court sentenced him to five years in the penitentiary, suspended in its entirety. Id. at p. 2. In the drug case, Mr. Johnson was sentenced to eight years in the penitentiary with four of those years suspended.[2] Docket No. 8-2 at p. 1. The sentence in the drug case had been imposed on October 9, 2013. Id. at p. 2.
Following Mr. Johnson's conviction and sentence in grand theft #1, he did not file a direct appeal. At that time, he was on parole supervision for the drug offense. Docket No. 8-1 at p. 5. By operation of SDCL § 23A-27-18.4, the Board had supervision over Mr. Johnson on both grand theft #1 and the drug offense.
Mr. Johnson signed a parole agreement which stated his “parole agent has the authority to place [him] in custody at any time and begin revocation proceedings if [he is] alleged to be in violation of any of the conditions of [the] agreement.” Docket No. 8-1 at pp. 11-12. If Mr. Johnson violated conditions of his parole, the agreement provided the Board could revoke the suspended portion of his sentence, impose the entire sentence, and/or refuse to give him credit for time spent on parole and/or supervision. Id. at p. 17.
A violation report was filed indicating that Mr. Johnson had violated the terms of his supervision on October 12, 2018, by absconding from supervision, committing the crime of impersonation to deceive law enforcement, using marijuana on several occasions, failing to maintain employment, and failing to attend his meetings with his parole officer. Docket No. 8-1 at pp. 5-10. An arrest warrant was issued (Docket No. 8-1 at pp. 1-2) and Mr. Johnson was apprehended on February 25, 2019. Id.
The Board held a probable cause hearing on March 1, 2019, and Mr. Johnson attended the hearing. Docket No. 8-1 at p. 3. The hearing officer determined there was probable cause to believe Mr. Johnson had violated terms of his supervision. Id. Mr. Johnson waived his right to appear before the Board for a final hearing to determine whether he violated terms of supervision. Docket No. 8-1 at p. 17.
On March 6, 2019, the Board extended a dispositional offer to Mr. Johnson and he accepted the offer. Docket No. 8-1 at pp. 17-19. Based on the accepted dispositional offer, the Board revoked Mr. Johnson's parole on March 13, 2019. Docket No. 8-1 at pp. 20-24. In accord with the dispositional offer accepted by Mr. Johnson, the Board imposed the entire 5-year sentence that had been suspended in grand theft #1, re-suspended one year and six months, and denied Mr. Johnson credit for 200 days spent on supervision. Id. A Notice of Entry of the Board's decision was served on Mr. Johnson on March 15, 2019. Docket No. 8-1 at p. 25. Mr. Johnson did not appeal the Board's decision to the state circuit court within 30 days-but the notice of entry did not advise him of his right to appeal or the applicable time period. Id.
Mr. Johnson was released on parole again on July 15, 2019. Docket No. 8-4. He was again convicted of grand theft (“grand theft #2”) in Clay County and was sentenced on January 11, 2021, to five years in the penitentiary with two years suspended. Docket No. 8-5. Mr. Johnson is currently incarcerated pursuant to his judgment of conviction in grand theft #2. The Board did not revoke Mr. Johnson's parole in grand theft #1 after he was released for the second time in July 2019. Mr. Johnson is not in custody on his grand theft #1 conviction.
Respondent now moves to dismiss Mr. Johnson's petition without holding an evidentiary hearing, arguing that he has failed to state a claim upon which relief can be granted. Docket No. 7. Mr. Johnson filed a response. Docket No. 12.
A state prisoner who believes he is incarcerated in violation of the Constitution or laws of the United States may file a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) constrains federal courts to exercise only a “limited and deferential review of underlying state court decisions.” Osborne v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). A federal court may not grant a writ of habeas corpus unless the state court's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, (2000). A federal habeas court may not issue the writ merely because it concludes the state court applied the clearly established federal law erroneously or incorrectly. Id. at 411. “Rather, that application must also be unreasonable.” Id. (emphasis added).
The state court's factual findings are presumed to be correct, and a federal habeas court may not disregard the presumption unless specific statutory exceptions are met. Thatsaphone v. Weber, 137 F.3d 1041, 1045 (8th Cir. 1998); 28 U.S.C. § 2254(e). A federal habeas court must Marshall v. Lonberger, 459 U.S. 422, 432 (1983).
AEDPA contains a one-year statute of limitations. Specifically, 28 U.S.C. § 2244(d) provides in relevant part:
See 28 U.S.C. § 2244(d)(1) and (2).
The Board entered its decision March 15, 2019. That decision became final 30 days later, April 14, 2019. SDCL § 1-26-31. Therefore, AEDPA required Mr. Johnson to file his petition with this court no later than April 14, 2020. In fact, he filed his petition with this court July 1, 2021, well over a year after the AEDPA limitations period had already expired.
Mr. Johnson states in his petition that he only just found out about the Board's actions with regard to his sentence. But that is contrary to the disposition he himself signed detailing the correctional remedy to be imposed on him and the notice of entry the Board served on him adopting the dispositional agreement. See Docket No. 8-1 at pp. 17-25. The documents bearing Mr. Johnson's signatures plainly advise him that the Board was going to impose his suspended sentence in grand theft #1 and take away 200 days credit for time spent on supervision. Id. Therefore, the court imputes knowledge of the Board's actions to Mr. Johnson as of the date the notice of entry of the Board's order was served on him.
The AEDPA limitations period is subject...
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