Shell v. Warden, Mike Durfee State Prison

• Decision Date: 27 July 2022
• Docket Number: 5:21-CV-05050-KES
• Parties: JERED ROD IRON SHELL, Petitioner, v. WARDEN, MIKE DURFEE STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA; BRENT FLUKE, Respondents.
• Court: U.S. District Court — District of South Dakota

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JERED ROD IRON SHELL, Petitioner, v. WARDEN, MIKE DURFEE STATE PRISON; THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA; BRENT FLUKE, Respondents.

No. 5:21-CV-05050-KES

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

July 27, 2022

REPORT AND RECOMMENDATION

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

This matter is pending before the court on the pro se petition under 28 U.S.C. § 2254 of Jered Rod Iron Shell a person incarcerated pursuant to a judgment of a South Dakota state court. See Docket No. 1. After screening Mr. Iron Shell's petition, the court issued an order to show cause directing the parties to address whether Mr. Iron Shell's petition should be dismissed as untimely. Docket No. 12. Pending is respondents' motion for judgment on the pleadings seeking dismissal of Mr. Iron Shell's petition without holding an evidentiary hearing. See Docket No. 15. Mr. Iron Shell never responded to the motion, and the time for doing so has passed. This matter has been 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.

FACTS

Mr Iron Shell's § 2254 petition arises out of two state cases: South Dakota v. Iron Shell, CR 17-5987 (2017 case), and South Dakota v. Iron Shell, CR 18-2664 (2018 case). Both prosecutions were brought in South Dakota State Circuit Court for the Seventh Judicial Circuit, Pennington County. Both prosecutions were for failing to register as a sex offender.^[1]

Mr. Iron Shell pled guilty to all charges in both cases. He was sentenced to two years' incarceration in the 2017 case, which was suspended on the condition Mr. Iron Shell successfully complete two years on probation. Docket No. 16-3. In the 2018 case, he was sentenced to five years' incarceration, which was suspended on the condition Mr. Iron Shell successfully complete three years on probation. Docket No. 16-5. Both sentences were to run concurrently. See Docket No. 16-4 at p. 3. Judgment was entered in the 2017 case on March 27, 2018. Docket No. 16-3 at p. 5. Amended judgment in the 2018 case was entered on August 2, 2018. Docket No. 16-5.

On January 16, 2019, the state filed petitions in both cases seeking to revoke Mr. Iron Shell's probation for various violations. Docket Nos. 16-10 and 16-11. After Mr. Iron Shell admitted the violations, the court revoked his suspended sentences in both cases, imposing the penitentiary sentences originally rendered. Docket Nos. 16-12 and 16-13. This occurred March 5, 2019. Id.

While imprisoned, Mr. Iron Shell was considered for parole several times. One condition of parole for all sex offenders in South Dakota is to successfully complete a “history polygraph.” Mr. Iron Shell failed to successfully complete the polygraph multiple times and was denied parole on October 20, 2020, and again on February 9, 2021. Docket No. 16-14 at p. 4. Mr. Iron Shell never appealed the denial of his parole to the South Dakota Board of Pardons and Paroles (“Board”) under SDCL ch. 1-26. Nor did he ever file a direct appeal to the state circuit court under that chapter.

Instead, on March 31, 2021, Mr. Iron Shell filed a state habeas petition in state circuit court, claiming the Board violated his rights under the Due Process, Equal Protection, and Ex Post Facto Clauses for denying him parole based on the failed polygraph tests. Docket No. 16-15. He enumerated several instances of failed polygraph tests, the latest of which was January 11, 2021. Id. at p. 5.

The state habeas court denied relief based on SDCL § 21-27-1.1, which provides that habeas relief is unavailable for administrative actions or decisions arising out of the penal institution where an inmate is confined. Docket No. 16-17. The state habeas court denied a certificate of probable cause. Id. That decision was rendered April 21, 2021. Id. Mr. Iron Shell sought a certificate of probable cause from the South Dakota Supreme Court, which denied relief on July 8, 2021. Docket No. 16-19.

Mr. Iron Shell filed his federal habeas petition under § 2254 on August 10, 2021.^[2] Docket No. 1. He alleges the state's incarceration of him violates his rights under the Due Process, Equal Protection, and Ex Post Facto clauses. Id. Respondents now move for judgment on the pleadings on the grounds that Mr. Iron Shell's federal petition is untimely and procedurally defaulted. Docket No. 15. As indicated above, Mr. Iron Shell did not respond.

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) (quotation omitted). 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 simply because [it] concludes . . . the relevant state-court decision applied 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, 1046 (8th Cir. 1998) (citations and quotation omitted); 28 U.S.C. § 2254(e). A federal habeas court must “more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked even ‘fair support' in the record.” Marshall v. Lonberger, 459 U.S. 422, 432 (1983) (cleaned up).

B. Statute of Limitations

Petitions for habeas relief in federal court collaterally attacking state court convictions are governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA contains a one-year statute of limitations. Specifically, 28 U.S.C. § 2244(d) provides in relevant part:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

See 28 U.S.C. § 2244(d)(1) and (2).

A judgment or state conviction is final, for purposes of commencing the statute of limitation period, at “either (i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.” Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). The time allotted for filing a petition for writ of certiorari with the Supreme Court is ninety days. Jihad v. Hvass, 267 F.3d 803, 804 (8th Cir. 2001).

The limitations period for § 2254 petitions is subject to statutory tolling. See 28 U.S.C. § 2244(d)(2). This one-year statute of limitation period is tolled, or does not include, the time during which a properly filed application for state post-conviction relief or other collateral review is pending in state court. Faulks v. Weber, 459 F.3d 871, 873 (8th Cir. 2006); 28 U.S.C. § 2244(d)(2). The phrase “post-conviction or other collateral review” in § 2254's tolling provision encompasses the “diverse terminology that different States employ to represent the different forms of collateral review that are available after a conviction.” Duncan v. Walker, 533 U.S. 167, 177 (2001). Thus, § 2254's tolling provision “applies to all types of state collateral review available after a conviction.” Id.

State collateral or post-conviction proceedings “are ‘pending' for the period between the trial court's denial of the [post-conviction relief] and the timely filing of an appeal from it.” Maghee v Ault, 410 F.3d 473, 475 (8th Cir. ...