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Buresh v. Pringle

United States District Court, D. North Dakota

February 21, 2018

Paul Elliot Buresh, Petitioner,
v.
Chad Pringle, Warden, Respondent.

          REPORT AND RECOMMENDATION

          ALICE R. SENECHAL UNITED STATES MAGISTRATE JUDGE

         Paul Elliot Buresh petitioned for habeas relief under 28 U.S.C. § 2254. (Doc. #2). After preliminary review, the court ordered service on the respondent. (Doc. #5). The respondent filed a motion to dismiss, (Doc. #8), and Buresh responded to that motion, (Doc. #17; Doc. #18).

         Summary of Recommendation

         Respondent contends that Buresh's petition is not timely and notes that the court did not receive the petition until nearly two months after Buresh declared that he placed the petition in the prison mailing system. Since there is a factual dispute regarding the date on which Buresh placed his petition in the prison mailing system and since the petition is subject to dismissal on other grounds, this court recommends bypassing the timeliness issue.

         Buresh asserts that a state prosecutor violated his due process rights, but that claim is procedurally defaulted and, therefore, barred from federal court review. He also asserts three claims of ineffective assistance of trial counsel-one of which is also procedurally defaulted and barred from review. The state court's denial of the two other ineffective assistance of counsel claims was reasonable; thus, Buresh is not entitled to habeas relief on those claims. This court, therefore, recommends that respondent's motion to dismiss be granted and that Buresh's habeas petition be dismissed.

         Background

         Buresh was initially charged with fifteen counts of Unlawful Possession of Images of Sexual Conduct by a Minor. Pursuant to defense counsel's request, the state court ordered that Buresh undergo a competency and criminal responsibility evaluation at the North Dakota State Hospital. State v. Buresh, Walsh County Case No. 50-2012-CR-0001, Doc. ID# 12-14. Based on Buresh's report of having at least four personality states, the psychologist's diagnosis was “Rule out Dissociative Identity Disorder.” (Doc. #2-2, p. 6). The psychologist determined that Buresh was competent to stand trial and that there were “no indications that any of the alleged conduct was the result of a loss or serious distortion of Mr. Buresh's capacity to recognize reality.” Id. at 9-10.

         After the psychologist's evaluation, the proceedings continued, and the court held a preliminary hearing. The day after the preliminary hearing, an Amended Information was filed, charging Buresh with 139 counts of Unlawful Possession of Images of Sexual Conduct by a Minor. Buresh, Walsh County Case No. 50-2012-CR-0001, at Doc. ID# 23. Pursuant to a written plea agreement and to North Carolina v. Alford, 400 U.S. 25 (1970), Buresh pleaded guilty to all 139 counts.[1] (Docs. #10-2 to -4). Criminal judgments on the 139 counts were entered on April 9, 2013.[2] (Doc. #10-4). Buresh did not directly appeal the criminal judgments.

         On April 10, 2014, Buresh filed a state application for post-conviction relief, (Doc. #10-6), and, after the state court appointed counsel to represent Buresh, counsel filed an amended post-conviction relief application alleging ineffective assistance of trial counsel, (Doc. #10-7). After an evidentiary hearing and post-hearing briefing, the state court found that Buresh “failed to establish that [he] was denied effective assistance of counsel or any manifest injustice in entering his pleas of guilty.”[3] (Doc. #10-8, p. 14). On appeal, the North Dakota Supreme Court summarily affirmed the order denying post-conviction relief, Buresh v. State, 895 N.W.2d 313 (N.D. 2017) (per curiam), and issued its mandate on June 15, 2017, (Doc. #10-10, p. 2).

         In his petition, Buresh alleges that trial counsel was ineffective by failing to (1) effectively communicate, (2) adequately explain the nature of an Alford plea, and (3) obtain an independent mental evaluation. (Doc. #2, p. 5). Buresh also contends that the prosecutor violated his due process rights by charging him with 139 counts of possession of unlawful images instead of one count since all of the images were stored on one device.[4] Id. at 6.

         Respondent contends that Buresh's petition is not timely. Alternatively, respondent asserts that Buresh did not fairly present his claims to the North Dakota Supreme Court, that the petition is subject to dismissal as a “mixed petition” under Rose v. Lundy, 455 U.S. 509 (1982), that Buresh's claims are defaulted, and that the federal court is, therefore, prohibited from reviewing Buresh's claims. (Doc. #9). Further, respondent contends that, if the court considers the claims on the merits, Buresh is not entitled to habeas relief. Id.

         Law and Discussion

         Buresh's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Under the AEDPA, various conditions must be met before a federal court can consider a petitioner's claims on the merits-the claims must be timely and must be properly exhausted before the state courts. Even when the AEDPA allows the court to consider claims on the merits, the standard of review is extremely narrow. Federal habeas relief may not be granted unless the state court's decision was contrary to or an unreasonable application of federal law or unless the decision was an unreasonable determination of the facts in light of the evidence presented in the state courts. 28 U.S.C. § 2254(d). The Supreme Court has stated that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court further stated, “If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state court proceedings.” Id. It is against those standards that the court considers Buresh's habeas petition, beginning with respondent's claims of procedural defects in Buresh's petition.

         1. Statute of Limitations

         Respondent first contends that Buresh's habeas petition is not timely.

         The AEDPA imposes a one-year statute of limitations for filing federal habeas petitions. 28 U.S.C. § 2244(d)(1). Under the AEDPA, the one-year limitation period starts to run from the latest of several possible triggering dates, including the date on which a state court judgment became final by the conclusion of direct review or by the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).

         The judgments of conviction were filed on April 9, 2013, and Buresh had thirty days, or until May 9, 2013, to appeal those judgments. See N.D.R.App.P. 4(b)(1)(A). Therefore, Buresh's one-year limitation period for filing a habeas petition started to run on May 10, 2013.

         On April 10, 2014, Buresh filed his state post-conviction relief application. (Doc. #10-6). By that date, 335 days had elapsed on the one-year clock. A properly filed state post-conviction relief application tolls the one-year period. 28 U.S.C. § 2244(d)(2). The AEDPA statute of limitations was, therefore, tolled from the date Buresh filed his post-conviction relief application until the North Dakota Supreme Court issued its mandate on June 15, 2017, after affirming the state district court's order denying post-conviction relief. See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (stating that a state post-conviction relief application is pending until the mandate is issued). Thus, to be timely, Buresh's habeas petition needed to be placed in the prison mailing system no later than July 15, 2017, since thirty days of his one-year period remained when the mandate was issued.

         In his habeas petition, Buresh declared, under penalty of perjury, that he placed his habeas petition in the prison mailing system on May 27, 2017. (Doc. #2, p. 14). But the Clerk did not receive Buresh's habeas petition until July 21, 2017. (Doc. #1). The Clerk did not file the petition on that date because Buresh had neither paid the filing fee nor moved to proceed in forma pauperis. On August 10, 2017, Buresh paid the filing fee and the Clerk then filed the petition.

         Respondent states that “[i]t is unknown how nearly two months elapsed between Buresh's supposed [mailing of the petition] and the actual date this Court received the incomplete petition.” (Doc. #9, p. 4). Respondent states, “If the filing date is July 21, 2017, ” the date the court received the habeas petition, “then Buresh's petition is untimely.” Id. Respondent urges this court to dismiss on that basis. Id.

         In response, Buresh contends that North Dakota Department of Corrections and Rehabilitation (DOCR) staff either negligently or intentionally failed to timely process his voucher request for the court's filing fee and mail his petition.[5] (Doc. #18, p. 2). Alternatively, Buresh states the postal service might have misplaced the envelope or that one of his alternate personalities might have “interfer[]ed in the mailing process.” Id. at 3. In his response, Buresh states that he prepaid the postage prior to placing the petition in the prison mailing system. Id. at 2. He also argues for equitable tolling.

         Under the prison mailbox rule, a habeas petition is deemed timely filed if it is placed in the prison mailing system on or before the last day for filing. Rules Governing Section 2254 Cases, Rule 3(d). A prisoner receives the benefit of the prison mailbox rule by demonstrating timely filing through a declaration or notarized statement (1) setting forth the date of deposit into the prison mailing system and (2) attesting that first-class postage was prepaid. Id.; Porchia v. Norris, 251 F.3d 1196, 1198 (8th Cir. 2001). Buresh declared, under penalty of perjury, that he placed the petition in the prison mailing system on May 27, 2017. While he asserted in his response that he prepaid the postage, he did not do so under penalty of perjury as required by Rule 3(d).

         Because of the factual dispute about the date of mailing, it would be necessary to hold an evidentiary hearing to decide the statute of limitations question.[6] Rather than holding an evidentiary hearing, this court recommends bypassing the limitations issue since Buresh's habeas petition is subject to dismissal on other grounds. See Pough v. United States, 442 F.3d 959, 965 (6th Cir. 2006) (“Whether Pough has complied with the limitations period is . . . not an issue that we have to decide as a threshold matter, as we would have to do if satisfying the limitations period were a jurisdictional prerequisite.”); Aron v. United States, 291 F.3d 708, 718 (11th Cir. 2002) (Carnes, J., concurring) (“[A] district court is not required to rule on whether an asserted statute of limitations bar applies if the § 2255 motion may be denied on other grounds.”).

         2. Exhaustion

         Respondent contends that Buresh did not properly exhaust all of his claims before the state courts and that Buresh's petition is, therefore, subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982).

         Before seeking federal habeas relief, a petitioner must “fairly present” his federal habeas claim to the state courts. Turnage v. Fabian, 606 F.3d 933, 936 (8th Cir. 2010). “To ‘fairly present' his claim, the petitioner must [have] present[ed] 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). The claim need not be an “exact duplicate, ” Odem v. Hopkins, 192 F.3d 772, 776 (8th Cir. 1999), but “the federal claim should not present significant additional facts such that the claim was not fairly presented to the state court, ” Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir. 1991). There must be “at least an arguable factual commonality.” Id. at 1303 (internal quotation marks omitted).

         Respondent contends that Buresh did not present claims identical to his current claims during the state post-conviction proceedings. (Doc. #9, p. 8). Respondent contends that Buresh did not present his due process claim to the North Dakota Supreme Court and that the only ineffective assistance of counsel claims presented in the state courts related to insufficient contact between Buresh and his trial counsel and Buresh's lack of understanding of his Alford pleas. Id. Respondent argues claims of ineffective assistance of counsel relating to not communicating effectively and not adequately explaining an Alford plea were not presented to the state courts.

         In this court's view, Buresh's amended post-conviction relief application and testimony at the evidentiary hearing raised all of the ineffective assistance of counsel claims he now makes in his federal habeas petition.[7] And the state court addressed each of those ineffective assistance of counsel claims in its order denying post-conviction relief.[8] In his amended post-conviction relief application, Buresh contended that his trial counsel was ineffective in failing to “seek a second opinion” regarding Buresh's mental examination. (Doc. #10-7, p. 4). And at the evidentiary hearing, Buresh testified regarding trial counsel's alleged ineffective communication and failure to adequately explain the nature of an Alford plea. (Doc. #10-14, pp. 8-14, 63-64, 67, 132). Additionally, Buresh's appellate brief alleged that his trial counsel did not effectively ...


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