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Duane Steen v. Don Redmann

August 11, 2011

DUANE STEEN, PETITIONER,
v.
DON REDMANN, WARDEN, RESPONDENT.



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

ORDER

Petitioner Duane Steen ("Steen") filed a petition for habeas relief under 28 U.S.C. § 2254. (Doc. #2). 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 June 26, 2002, Steen pled guilty to the charge of delivery of a controlled substance.(Doc. #3-2). He was sentenced to twenty years of imprisonment with ten years suspended, and five years of supervised probation. Id.

On May 3, 2004, Steen submitted a state petition for post-conviction relief seeking modification of his sentence. State v. Steen, Williams County, Case No. 53-01-K-00189, Doc. #108. The state district court granted Steen's petition, suspended the remaining time on his initial twenty-year sentence, and released Steen on supervised probation. Id. at Docs. #119, #120; (Doc. #3-3). The court entered its amended criminal judgment on July 1, 2004. (Doc. #3-3). Steen alleges in his federal habeas petition that the amended criminal judgment constitutes double jeopardy.

On January 4, 2005, the State filed a petition for revocation of Steen's probation. See State v. Steen, Williams County, Case No. 53-01-K-00189, Doc. #122. On February 18, 2005, the state district court found Steen had violated the conditions of his probation and sentenced him to two years of imprisonment in addition to the time Steen had already served, with the remaining time on his initial twenty-year sentence suspended, and five years of supervised probation. (Doc. #3-1). Steen was released on supervised probation after serving the two-year sentence. Steen contends in his federal habeas petition that the 2005 order revoking his probation constitutes double jeopardy.

On October 11, 2007, the State filed another petition for revocation of Steen's probation. See State v. Steen, Williams County, Case No. 53-01-K-00189, Doc. #167. On May 9, 2008, the state district court found Steen had again violated the conditions of his probation and sentenced him to ten years of imprisonment with the remaining time on his initial twenty-year sentence suspended, and five years of supervised probation. (Doc. #3-4). Steen claims in his federal habeas petition that the 2008 order revoking his probation constitutes double jeopardy.

On December 1, 2008, Steen filed an application for court-appointed counsel for assistance with state post-conviction proceedings and the state district court granted his application. See State v. Steen, Williams County, Case No. 53-01-K-00189, Docs. #222, 225. Around that time Steen also filed at least one pro se state petition for post-conviction relief.*fn1 On July 6, 2010, Steen filed another pro se state petition for post-conviction relief and an application for court-appointed counsel. Id. at Docs. #240, #241. That same day Steen's court-appointed counsel also filed a state petition for post-conviction relief on Steen's behalf. Id. at Doc. #245. On March 9, 2011, Steen withdrew all of his state petitions for post-conviction relief. Id. at Doc. #303.

On January 5, 2011, while Steen's state petitions for post-conviction relief were pending, Steen filed a state petition for habeas relief. Id. at Doc. #278. On February 16, 2011, the state district court denied Steen's petition for habeas relief. Id. at Doc. #295. On March 7, 2011, Steen filed a state petition for habeas relief with the North Dakota Supreme Court. See http://www.ndcourts.gov/_court/docket/20110070.htm.

In Steen's federal habeas petition he claims the Double Jeopardy Clause of the Fifth Amendment was violated when he was sentenced multiple times to "harsh punishments." Id. at p. 5. Steen states that the amended criminal judgment entered after the state district court granted his state petition for post-conviction relief, and the orders entered after both of Steen's probation revocations subjected him to double jeopardy. Id.; (Doc. 3, pp. 7-8); (Docs. #3-1, #3-2, #3-3, #3-4). Steen also contends that N.D. Cent. Code § 12.1-32-07(6), which allows the state court to revoke a defendant's probation if the defendant violates a condition of his probation, unconstitutionally violates the Double Jeopardy Clause of the Fifth Amendment.

Timeliness of the Claims

Steen's petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") which imposes a one-year statute of limitations for filing habeas petitions. 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1) the triggering event for when the statute of limitations begins to run is the latter of several events, including "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)(D). If the statute of limitations set out in § 2244(d)(1) should be applied on a claim-by-claim basis as held by the Third, Sixth, and Ninth Circuits, Steen's claims that the 2004 amended criminal judgment and the 2005 order revoking his probation subjected him to double jeopardy are untimely and are barred from federal review.*fn2 See Fielder v. Varner, 279 F.3d 113, 122 (3rd Cir. 2004); Bachman v. Bagley, 487 F.3d 979, 984 (6th Cir. 2007); Souliotes v. Evans, 622 F.3d 1173, 1180 (9th Cir. 2010); but see Walker v. Crosby, 341 F.3d 1240, 1243 (11th Cir. 2003) (individual claims within a single habeas petition could not be viewed separately for timeliness). The court will not address the issues surrounding the timeliness of Steen's federal habeas petition because, in any event, Steen's claims lack merit.

Exhaustion Requirement

Habeas corpus provides state prisoners the sole 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) ...


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