United States District Court, D. North Dakota
REPORT AND RECOMMENDATION
R. SENECHAL UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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. (Docs. #10-2 to -4). Criminal judgments on
the 139 counts were entered on April 9, 2013. (Doc. #10-4).
Buresh did not directly appeal the criminal judgments.
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.” (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).
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. Id. at 6.
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.
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.
Statute of Limitations
first contends that Buresh's habeas petition is not
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).
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.
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.
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.
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.
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. (Doc. #18, p. 2). Alternatively, Buresh
states the postal service might have misplaced the envelope
or that one of his alternate personalities might have
“interfered 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
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).
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. 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.”).
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).
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
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.
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. And the state court
addressed each of those ineffective assistance of counsel
claims in its order denying post-conviction
relief. 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 ...