Thielsen v. Weber
| Decision Date | 12 March 2012 |
| Docket Number | CIV 10-1029-RAL |
| Parties | PATRICK JON THIELSEN, Petitioner, v. DOUGLAS WEBER, Warden of the South Dakota State Penitentiary; and MARTY J. JACKLEY, South Dakota Attorney General, Respondents. |
| Court | U.S. District Court — District of South Dakota |
Petitioner, Patrick Jon Thielsen, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Thielsen is incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota. Respondents, Warden Weber and Attorney General Jackley, move to dismiss Thielsen's petition contending that Thielsen procedurally defaulted the claims before this Court. Doc. 12. For the reasons explained, this Court dismisses Thielsen's petition.
On November 9, 2001, Thielsen was indicted in state court in Brown County, South Dakota, for the felony murder of Kelly Ryan or in the alternative, the first degree murder of Kelly Ryan. Thielsen also was charged with the second degree rapes of T.L.J. and Kelly Ryan, and aggravated assault against a jailer while trying to escape from custody. See State v. Thielsen, 2004 S.D. 17,675 N.W.2d 429. The state court appointed counsel to represent Thielsen and authorized another attorney with experience in capital cases to act as a consultant. Thielsen initially pleaded not guilty to the charges. On November 11,2002, the day before trial for the rape of T.L.J., the Brown County State's Attorney proposed a plea bargain to defense counsel, under which Thielsenwould plead guilty to the murder of Kelly Ryan and the rape of T.L.J. In exchange for his plea, the state agreed to drop the remaining charges and not to seek the death penalty.
After consulting with his attorneys for two hours, Thielsen signed the plea agreement. Thielsen's change of plea hearing was held later that morning. After the plea colloquy, the court found that Thielsen was acting knowingly and intelligently, was represented by counsel, was competent to enter a plea, and understood the nature and consequences of the plea. The court then recessed so the factual basis statement could be prepared. Thielsen was given time to review the factual basis statement and consult with his attorneys and with his wife. The hearing reconvened and the judge asked Thielsen whether he had the opportunity to examine the factual basis statement, whether he read it, whether he signed it, whether he consulted with his attorneys before signing it, whether he voluntarily signed it, whether he understood it, and whether the stipulated statement was true and correct. Thielsen replied yes to all those questions. The factual basis statement then was read aloud and the court accepted Thielsen's plea.
Thielsen's sentencing was set for November 21, 2002. Prior to his sentencing hearing, Thielsen prepared a pro se motion to withdraw his plea of guilty and a motion to dismiss his appointed counsel. The court denied Thielsen's pro se motions after a hearing, finding that Thielsen entered into the plea agreement knowingly and willingly and that Thielsen's testimony clearly demonstrated that he understood the proceedings. Thus, the court reasoned that his motion to withdraw his plea was frivolous. The South Dakota Supreme Court affirmed on February 4, 2004. See Thielsen. 2004 SD 17, 675 N.W.2d 429.
Thielsen subsequently filed a petition for writ of habeas corpus in state court. Neither party provided this Court with a copy of Thielsen's state habeas petition, but the circuit court stated thatThielsen asserted three grounds for relief. Thielsen alleged that his sentence was unconstitutionally harsh and excessive and constituted cruel and unusual punishment, that he was not competent to enter a plea at the time of his arraignment, and that his trial counsel were ineffective in 13 different respects. Doc. 12-1 at 10. The state court denied his petition on September 2,2009. Id. Thielsen filed a motion for the issuance of a certificate of probable cause on November 23,2009. Doc. 12-2. The circuit court denied Thielsen's motion on the merits on December 18, 2009. Doc. 1-1 at 20. On January 19, 2010, Thielsen applied to the South Dakota Supreme Court for a certificate of probable cause, which the court denied as untimely on February 5,2010. Doc. 1-1 at 22,24.
A federal court may not consider a state prisoner's claim for habeas relief unless the petitioner has first exhausted his state court remedies. See 28 U.S.C. § 2254(b)(1)(A) ( ). In other words, the "state courts [must have] an opportunity to act on [the petitioner's] claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion doctrine protects the state courts' role in enforcing federal law and prevents the disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518 (1982).
Procedural default is a related rule. The United States Supreme Court explained that:
[i]f we allowed state prisoners to obtain federal review simply by letting the time run on adequate and accessible state remedies and then rushing into the federal system, the comity interests that animate the exhaustion rule could easily be thwarted. We therefore ask infederal habeas cases not only whether an applicant has exhausted his state court remedies; we also ask how he has done so. This second inquiry forms the basis for our procedural default doctrine: A habeas petitioner who has concededly exhausted his state remedies must also have properly done so by giving the state a fair opportunity to pass upon his claims.
O'Sullivan v. Boerckel, 526 U.S. 838, 853-54 (internal citations omitted). "If a prisoner has not presented his habeas claims to the state court, the claims are defaulted if a state procedural rule precludes him from raising the issue now." Abdullah v. Groose, 75 F.3d 408,411 (8th Cir. 1996), cert, denied, 517U.S. 1215 (1996). The doctrine of procedural default "is nearly absolute, barring procedurally-defaulted petitions unless a habeas petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or show actual innocence." Reagan v. Norris, 279 F.3d 651,656 (8th Cir. 2002) (internal quotations omitted). "The cause and prejudice requirement shows due regard for the States' finality and comity interests while ensuring that fundamental fairness remains the central concern of the writ of habeas corpus." Cagle v. Norris, 474 F.3d 1090,1099 (8th Cir. 2007) (quoting Dretke v. Haley, 541 U.S. 386,393 (2004)).
Respondents argue that Thielsen's claims are procedurally defaulted by his failure to timely file a motion for a certificate of appealability from the South Dakota Supreme Court. It is well established that "a failure to exhaust remedies properly in accordance with state procedure results in a procedural default of the prisoner's claims." Pierce v. Dooley, Civ. No. 10-4055, 2011 WL 860430 at *5 (D.S.D. Mar. 8,2011) (citing O'Sullivan, 526 U.S. at 848). Respondent's argument is correct; Thielsen has "procedurally defaulted his claim[s] in state court, because he failed to seek discretionary review before the South Dakota Supreme Court by [timely] requesting a certificate of probable cause." Two Eagle v. Weber, Civ. No. 10-5036,2010 WL 4237223 at *5 (D.S.D. Oct.21,2010). In his petition, Thielsen argues that the South Dakota Supreme Court "would not accept the appeal" from the denial of his petition for habeas corpus in state court. Doc. 1 at 6. But the record demonstrates that the South Dakota Supreme Court "refused to hear the appeal" due to Thielsen's failure to timely file a motion for a certificate of probable cause.
Under South Dakota law, "following a state trial court's denial of habeas relief, the petitioner must ask the trial court to issue a certificate of probable cause that an appealable issue exists." Two Eagle, 2010 WL 4237223 at *4 (citing SDCL 21-27-18.1). SDCL 21-27-18.1 requires that a motion seeking a certificate of probable cause "be filed within thirty days from the date the final judgment or order is entered." The circuit court denied Thielsen's habeas petition on September 3,2009. Doc. 12-1. Thielsen did not file a motion for a certificate of probable cause until November 23, 2009, far beyond the 30-day statutory period. Doc. 12-2. The circuit court denied Thielsen's motion on the merits on December 18,2009. Doc. 1-1 at 20. SDCL 21 -27-18.1 permits a petitioner "upon the circuit court judge's refusal to issue a certificate of probable cause, file a separate motion for issuance of a certificate of probable cause with the Supreme Court within twenty days of the entry of the circuit judge's refusal." There does not appear to be any exception for the 20-day period under South Dakota law. See Two Eagle. 2010 WL 4237223 at*4. Thielsen did not file his motion for a certificate of probable cause with the South Dakota Supreme Court until January 19,2010, again beyond the allotted time period. Under South Dakota law, a motion for a certificate of probable cause must be dismissed as untimely, even if filed only one day late. See Hannon v.Weber, 2001 S.D. 146, f 8,638 N.W.2d 48,50 ( ). Thus, Thielsen has procedurally defaulted his claims.
Thielsen argues that his procedural default is not "an independent and adequate state law" ground barring him from federal habeas relief. See Coleman v. Thompson, 501 U.S. 722, 729 (1991)....
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