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Joe R. Blurton v. Donald Redman

May 23, 2011

JOE R. BLURTON, PETITIONER,
v.
DONALD REDMAN, RESPONDENT.



The opinion of the court was delivered by: Karen K. Klein United States Magistrate Judge

ORDER

Petitioner Joe R. Blurton ("Blurton") filed a petition for habeas relief under 28 U.S.C. § 2254 and a supplement to the petition. (Docs. #2, #3). When a prisoner seeks redress from a governmental entity the court must conduct an initial review of the petition prior to service upon the respondent. 28 U.S.C. § 1915A(a). On initial review the court must identify cognizable claims or dismiss the petition, or any part of it, that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b).

Blurton pled guilty to the charge of gross sexual imposition. See State v. Blurton, Cass County, Case No. 09-07-K-03531. He was sentenced to twenty years of imprisonment with fifteen years suspended, and five years of supervised probation. Id. Blurton appealed from the state court judgment on the grounds that his guilty plea was not knowingly, voluntarily or intelligently made, there was not a sufficient factual basis for the plea, his counsel was ineffective, and there was prosecutorial misconduct and evidence manipulation. See State v. Blurton, 2009 ND 144, 770 N.W.2d 231. The North Dakota Supreme Court affirmed the state district court's judgment. Id. Blurton filed a petition for a writ of certiorari which was denied by the United States Supreme Court. See http://www.ndcourts.gov/_court/docket/20090009.htm. The North Dakota Supreme Court issued its mandate on November 24, 2009. Id.

On January 6, 2010, Blurton filed a state petition for post-conviction relief. See Blurton v. State, Cass County, Case No. 09-2010-CV-00028. Blurton claimed he was entitled to relief because his arrest and prosecution lacked probable cause, his guilty plea was coerced, his plea agreement was not revealed to the state district court, he did not understand the charge against him, he was denied due process, he was subjected to double jeopardy, his conviction was not supported by a factual basis, his sentence constitutes cruel and unusual punishment, and he received ineffective assistance of counsel. (Docs. #2-1, #2-2). The state district court denied Blurton's request for post-conviction relief. Id. Blurton appealed from the order denying his application for post-conviction relief on the grounds that there was prosecutorial misconduct, he received ineffective assistance of counsel, he was denied due process, the prosecution failed to disclose exculpatory evidence, and he was legally and factually innocent. Blurton v. State, 2010 ND 223, 795 N.W.2d 37 (unpublished table decision). The North Dakota Supreme Court summarily affirmed the state district court's order. Id. The North Dakota Supreme Court issued its mandate on January 14, 2011. See http://www.ndcourts.gov/_court/docket/20100182.htm.

Blurton timely filed his habeas petition on March 14, 2011. Blurton raised four grounds for relief and several other claims in the facts supporting each ground. Blurton contends his guilty plea was not voluntarily, knowingly and intelligently made, and it was not supported by a factual basis. He claims he was denied due process with regard to his motion to withdraw his guilty plea because his counsel erroneously informed the court that Blurton did not wish to pursue the motion. Blurton alleges he was denied assistance of counsel at several points throughout the criminal process, and when he did have counsel, counsel's assistance was ineffective. Finally, Blurton contends the North Dakota Supreme Court refused to allow him to utilize notes, briefs, or papers during his oral argument on direct appeal.

EXHAUSTION REQUIREMENT

Habeas corpus provides state prisoners the exclusive federal remedy for challenges to the fact or duration of their confinement. Franklin v. Webb, 653 F.2d 362, 363 (8th Cir. 1981) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Section 2254(b)(1), 28 U.S.C., provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

The doctrine of exhaustion dictates that "as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act." Mellott v. Purkett, 63 F.3d 781, 784 (8th Cir. 1995) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)). The exhaustion doctrine requires a state prisoner to "give state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

"To satisfy the exhaustion requirement, [Blurton] must show that he either made a fair presentation of his claims to the state courts or that he has no other presently available state remedies to pursue." Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999); see also Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001) (emphasizing that the exhaustion doctrine "turns on an inquiry into what procedures are 'available' under the state law"). "To 'fairly present' his claim, the petitioner must present the same facts and legal theories to the state court that he later presented to the federal courts." Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994). In addition, petitioner must refer to "a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue" in a claim before the state court. Martin v. Solem, 801 F.2d 324, 330 (8th Cir. 1986). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Id. Furthermore, general appeals to broad constitutional principles, such as due process, are insufficient to establish exhaustion. Gray v. Netherland, 518 U.S. 152, 163 (1996).

Voluntary Plea

Blurton contends that his guilty plea was not voluntary because he was coerced to plead guilty due to the nature of the "malicious" charges against him, because he was held as a pretrial detainee in an "oppressive" manner, and because the amount of the bail set by the court put mental and financial pressure on Blurton to plead guilty. Blurton also claims his counsel did not assert his constitutional rights for him, which forced him to plead guilty.

Blurton proceeded pro se on direct appeal from his criminal conviction and on appeal from the state district court's order denying his application for post-conviction relief. The court has reviewed all of Blurton's briefs filed with the North Dakota Supreme Court. See http://www.ndcourts.gov/_court/calendar/20090009.htm, State v. Blurton, 2009 ND 144, 770 N.W.2d 231, Appellant Brief and Reply Brief; http://www.ndcourts.gov/_court/calendar/20100182.htm, Blurton v. State, 2010 ND 223, 795 N.W.2d 37 (unpublished table decision), Appellant Brief and Reply Brief.

Blurton claimed on direct appeal that his plea was not voluntary because the state district court did not comply with the requirements under Rule 11 of the North Dakota Rules of Criminal Procedure. See State v. Blurton, 2009 ND 144, 770 N.W.2d 231, Appellant Brief at pp. 2-3, 7-8; see also State v. Blurton, 2009 ND 144, 770 N.W.2d 231 (stating that Rule 11 of the North Dakota Rules of Criminal Procedure provides a framework for determining whether a plea is voluntary, and finding that Blurton's guilty plea was voluntary). Although Blurton's claim in his federal habeas petition is similar to the claim he made in state court, since both alleged his guilty plea was not voluntary, he did not satisfy the fair presentation requirement, since the federal claim is based on different factual grounds than his claim on direct appeal. Furthermore, if Blurton contends his claim in his federal habeas petition is the same as his claim on direct appeal, this court can not consider the claim because it only implicates an error of state law. "[E]rrors of state ...


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