Shell v. Warden, Mike Durfee State Prison

Decision Date16 March 2023
Docket Number5:21-CV-05050-KES
PartiesJERED ROD IRON SHELL, Petitioner, v. WARDEN, MIKE DURFEE STATE PRISON, THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, and BRENT FLUKE, Respondents.
CourtU.S. District Court — District of South Dakota

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

Petitioner Jared Iron Shell, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Docket 1. The court referred this matter to Magistrate Judge Duffy. Docket 11. Magistrate Judge Duffy ordered the parties to show cause why Iron Shell's claims should not be dismissed as untimely. Docket 12 at 6. Respondents, Warden, Mike Durfee State Prison, the Attorney General of the State of South Dakota and Brent Fluke, moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Docket 15. Magistrate Judge Duffy issued a Report and Recommendation, recommending the court grant respondents' motion for judgment on the pleadings and dismiss Iron Shell's petition in part for being untimely and in part because he has procedurally defaulted his claims. See Docket 19 at 9, 13-14. Iron Shell objects to this Recommendation. Docket 21.

STANDARD OF REVIEW

The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations as to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P 72(b). In conducting its de novo review, this court may then “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); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

FACTUAL BACKGROUND

In determining the facts, the court takes judicial notice of Iron Shell's criminal cases and state habeas filings. The court also considers the material Iron Shell and respondents submitted relating to Iron Shell's parole paperwork because they are either necessarily embraced in his petition or do not contradict his petition. See Porous Media Corp v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). Additionally, the court takes judicial notice of information contained on the South Dakota Department of Correction's official website. See Fed. R. of Evid. 201 (empowering court to take judicial notice of facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Malkin v. Fed. Ins. Co., 562 F.Supp.3d 854, 861 (C.D. Cal. 2022) (taking judicial notice of documents found on California agency websites when deciding Fed. R. of Civ. Proc. Rule 12(c) motion); Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F.Supp.3d 156, 166 (S.D.N.Y. 2015) (taking judicial notice of documents retrieved from official governmental websites and considering them in a Rule 12(c) motion). The court accepts plaintiff's factual allegations as true and construes all reasonable inferences in favor of the non-moving party. See Saterdalen v. Spencer, 725 F.3d 838, 840-41 (8th Cir. 2013).

In March 2018, Iron Shell pleaded guilty in South Dakota state court, case 17-5987,[1]to failing to update his employment and address, as required due to his sex offender status. See Docket 16-3 at 1-3. The state court sentenced him to a suspended two-year prison sentence on both counts, to run concurrently, and to a two-year probationary period. See id. at 2-4.

On May 29, 2018, South Dakota filed a petition to revoke Iron Shell's probation in his 17-5987 case, and after he admitted to the alleged violations in the petition to revoke, the South Dakota state court amended his previous judgment and ordered him to continue his probation for two years starting on July 27, 2018, the date of the court's amended judgment. See Docket 16-9 at 2-3. That same day, July 27, 2018, in case 18-2664,[2]Iron Shell pleaded guilty to failing to update his address, and the South Dakota state court sentenced him to a suspended five-year sentence, with a three-year probationary period to run concurrently with his two-year probationary sentence in his 17-5987 case. See Docket 16-4 at 1-3. The South Dakota state court ordered Iron Shell to serve 180 days in Pennington County Jail, with 66 days credit and the last 90 days being suspended. See Docket 16-5 at 2.

In January 2019, South Dakota filed a petition to revoke both of the probation sentences in cases 17-5987 and 18-2664. See Docket 16-10 at 1-4; Docket 16-11 at 1-4. In March 2019, Iron Shell admitted to the petitions' allegations. See Dockets 16-12, 16-13. In his 17-5987 case, the South Dakota state court revoked his suspended sentences and ordered him to serve two years in custody for both counts to run concurrently. See Docket 16-12 at 1-3. In his 18-2664 case, the court revoked Iron Shell's suspended sentence and sentenced him to a five-year term with the last three years suspended, to run concurrent with his 17-5987 sentence. See id. at 2; Docket 16-13 at 1-4.

The South Dakota Board of Pardons and Paroles (Board) issued an initial parole date of July 4, 2019, to Iron Shell. See Offender Locator, South Dakota Department of Corrections, https://doc.sd.gov/adult/lookup/ (last visited February 9, 2023). The Board held a dispositional meeting on May 5, 2020, and ultimately denied his parole. Docket 16-14 at 4 (providing for next review date to be in October 2020). The Board later denied parole to Iron Shell on October 10, 2020, but then granted him parole on January 11, 2021, on the condition that he would successfully complete a polygraph test. Id. The Board denied Iron Shell parole on February 9, 2021, due to Iron Shell failing the polygraph test on January 11, 2021. See id.; Docket 1-1 at 1-3.

Iron Shell did not file a notice of appeal with the South Dakota Circuit Court. Instead, on March 31, 2021, Iron Shell filed a state habeas petition in which he argued the Board's denial of parole based on his three failed polygraph tests violated his Due Process, Fifth Amendment, Eighth Amendment, Equal Protection, and Ex Post Facto rights. See Docket 16-15 at 6, 8, 10-11. The South Dakota Circuit Court dismissed this state habeas petition for lack of jurisdiction. See Docket 16-17. Iron Shell moved for a certificate of probable cause to appeal the decision to the South Dakota Supreme Court, but the South Dakota Supreme Court denied his motion. See Docket 16-17; Docket 16-18.

In August 2021, Iron Shell filed this instant § 2254 petition. See Docket 1. He challenges both his underlying convictions and his parole denials. Id. Attacking his convictions, he alleges that the State has violated his rights under the Ex Post Facto Clause, the Double Jeopardy Clause, and the Due Process Clause because he was required to serve time for failing to register, a “non-violent crime,” despite him already serving his time in federal prison for his underlying sexual offense. See Docket 1-1 at 6-7, 15-17. With respect to his parole denials, he alleges various Constitutional violations, including his Fifth Amendment Right against self-incrimination. See id. at 4, 19-27. He argues the State violated his Fifth Amendment Right against self-incrimination because it refuses to release him on parole because of his three failed polygraph tests, the latest failure being January 11, 2021, even though his underlying offenses were non-violent. See id. Additionally, he argues that his parole denial violates his rights under the Equal Protection Clause because inmates convicted of forgery, driving under the influence, and possessing a controlled substance qualify for early release from parole, unlike him due to his sex offender status. See id. at 8.

DISCUSSION
I. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations to petitions filed under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1); Martin v. Fayram, 849 F.3d 691, 695-96 (8th Cir. 2017). As relevant here, the one-year limit starts to run the later of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[,] or “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A), (D); see Cook v. New York State Div. of Parole, 321 F.3d 274, 280-81 (2d. Cir. 2003) (holding that date of administrative decision to revoke parole triggered the one-year statute of limitation under the AEDPA). Although the Eighth Circuit has not decided whether the AEDPA's statute of limitations applies to individual claims rather than an application as a whole, every court of appeals to consider the question has held the limitation applies on a claim-by-claim basis. See Capozzi v. United States, 768 F.3d 32, 33 (1st Cir. 2014) (per curiam) (collecting cases). Thus, the court must separate Iron Shell's claims attacking his conviction from his claims attacking his parole denials.

A. Underlying Conviction

Iron Shell argues that prosecuting him for failing to register as a sex offender violates the Ex Post Facto and Double Jeopardy Clauses because he has already paid his debt to society by serving time for his underlying sex offense. See Docket 1 at 8; Docket 1-1 at 6-7. This claim attacks his final judgment on his failure to register convictions. For state petitioners who do not seek review with the United States Supreme Court, judgment becomes final at the “expiration of the time for seeking [direct] review” in state court. Gonzalez v. Thaler 565 U.S. 134, 150 (2012). Because Iron Shell...

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