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: U.S. District Court — District of South Dakota

CHARLES RAY JOHNSON, Petitioner,
v.
DOUG CLARK^[1]; SOUTH DAKOTA ATTORNEY GENERAL, Respondents.

No. 4:21-CV-04116-KES

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

October 22, 2021

REPORT AND RECOMMENDATION

VERONICA L. DUFFY United States Magistrate Judge

INTRODUCTION

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.

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FACTS

The facts pertinent to the pending motion are as follows. There are three convictions at play in Mr. Johnson's criminal history:

(1) a drug-related offense from Minnehaha County in File 12-6886 (“drug offense”), in which sentence was imposed October 9, 2013

(2) a grand theft offense from Clay County in File 17-155 (“grand theft #1”), in which sentence was imposed January 5, 2018; and

(3) a grand theft offense from Clay Count in File 20-55 (“grand theft #2”), in which sentence was imposed December 28, 2020

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.

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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.

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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

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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.

DISCUSSION

A. Scope of a § 2254 Petition

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

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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...