United States District Court, D. North Dakota
ORDER GRANTING MOTION TO DISMISS
Charles S. Miller, Jr., Magistrate Judge United States
the court is a Motion to Dismiss filed by respondents on
February 8, 2018. Also before the court are motions to amend
the petition for habeas corpus relief and for an evidentiary
hearing filed by the petitioner, Derek Matthew Wisham
(“Wisham”) on March 12, 2018. For the reasons set
forth below, respondents' motion is granted, Wisham's
motions are deemed moot, and the above-entitled action is
dismissed with prejudice.
Underlying State Conviction
chronology of events culminating in Wisham's conviction
in state district court was summarized as follows in a brief
filed by Wisham with the North Dakota Supreme Court.
[¶2] Petitioner and Appellant Derek Matthew Wisham
(Wisham) was charged in Morton County case 30-2014-CR-00718
with the offenses of Gross Sexual Imposition, a class AA
Felony and Assault, a Class A Misdemeanor, alleged to have
occurred on or about June 8, 2014. On December 18, 2014,
Wisham entered a guilty plea to an amended charge of Sexual
Imposition, a class B Felony and Assault, a Class A
Misdemeanor. A presentence investigation was ordered and a
sentencing hearing was scheduled. At his sentencing hearing
on April 13, 2015, Wisham orally moved to withdraw his guilty
plea and the District Court denied that oral motion, finding
that Wisham had not supplied any sufficient reason to
withdraw his plea. New counsel was appointed to Wisham and
Wisham orally moved to withdraw his guilty plea at his
rescheduled sentencing hearing on May 19, 2015. Upon request
of the District Court, Wisham filed a formal written Motion
to Withdraw Guilty Plea. For reasons argued in Wisham's
written motion, the District Court granted his Motion to
Withdraw Guilty Plea on July 23, 2015, finding that there may
have been an issue with ineffective assistance of counsel and
that there was a concern that Wisham did not make a knowing
plea. The State amended the Information to reflect the
original charges and the matter was rescheduled for trial.
[¶3] On August 20, 2015, counsel for Wisham moved to
withdraw from his representation and the District Court
granted that motion on August 26, 2015. New counsel was
reassigned and the matter was again set for jury trial. On
December 22, 2015, Wisham again entered a guilty plea, to the
reduced charge as before. On the Sexual Imposition charge,
Wisham was sentenced to a term of 10 years in prison with 6
years suspended. On the Assault charge, Wisham was sentenced
to a term of 1 year in prison, concurrent with the Sexual
Imposition charge. Wisham was given credit for 17 months and
18 days for the extended time that he spent in custody
awaiting disposition of his case.
(Doc. No. 15-24 (Wisham II Appellant's Brief).
First Application for Postconviction Relief
August 9, 2016, Wisham filed an application for
postconviction relief in state district court, claiming that
his victim had perjured herself multiple times, that his
conviction was obtained through coercion and in violation of
his Fifth Amendment right against self-incrimination, breach
of contract, that he was denied an opportunity to conduct his
own investigation, that the State's sex offender
registration requirement as applied to him is
unconstitutional, and that he was denied effective assistance
of counsel. (Doc. No. 15-6).
state district court convened a hearing on the application.
(Doc. No. 15-8). Thereafter, on April 20, 2017, it issued an
order denying the application. (Doc. No. 15-9). Its decision
was affirmed on appeal by the North Dakota Supreme Court.
Wisham v. State, 2017 ND 235, 903 N.W.2d 60 (per
Second Application for Postconviction Relief
March 24, 2017, Wisham filed a second application for
postconviction relief in state district court. (Doc. No.
15-11). In addition to again challenging the
constitutionality of State's sex offender registration
requirement as applied to him, he complained that the State
had miscalculated his good time. (Id.). On April 21,
2017, the state district court summarily denied the
application without a hearing on motion by the State. (Doc.
No. 15-13). Its decision was affirmed on appeal. Wisham
v. State, 2017 ND 236, 903 N.W.2d 60.
Third Application for Post Conviction Relief
26, 2017, Wisham filed a third application for post
conviction in state district court, this time claiming that
he had been denied parole in breach of his “plea
deal” and further requesting that a change in State law
regarding good time that post-dated his conviction be
retroactively applied. (Doc. No. 15-15). The state district
court denied the application on October 27, 2017, opining
that the decision to grant or deny parole was not a valid
ground for postconviction relief and it had already addressed
the issue of good time when disposing of his previous
application. (Doc. No. 15-17). Wisham did not appeal.
Petition for Writ of Habeas Corpus pursuant to §
December 12, 2017, Wisham initiated the above-entitled action
pro se by filing a petition for a writ of habeas
corpus with this court pursuant to 28 U.S.C. § 2254. He
asserts the following grounds for relief:
Ground One: Perjury or lying or making false statements under
oath by the accuser. Manufacturing of evidence.
Ground Two: Conviction obtained by the use of coercion/denial
of effective assistance of counsel.
Ground Three: Conviction obtained by a violation of my
privilege against self-incrimination.
Ground Four: Breach of contract because case was not
re-opened. Or violation of plea deal.
Ground Five: Denial of right to find witnesses in my favor.
Ground Six: Registration is unconstitutional.
Ground Seven: Denial of effective assistance of counsel.
Ground Eight: Failure to credit me for goodtime for all of my
sentence imposed as the law reads.
Ground Nine: Breach of contact or violation of plea deal.
Ground Ten: Taking my 2nd Amendment right away is a violation
of my plea deal (Alford) and unconstitutional.
(Doc. No. 1).
February 8, 2018, respondents filed a response to
Wisham's habeas petition. They also filed a motion to
March 12, 2018, Wisham filed a motion to amend his petition
to clarify that he seeks the following:
The dismissal with prejudice of all of the following: all of
my sentence, all of my collateral consequences, all of my
probation, and all of my registration is found to be
unconstitutional. And that Constitutional rights be found to
be unable to be given away or forfeited in plea bargains
because of coercion or unable to be taken away at all because
a right is something that cannot be taken away or it would
just be privilege. And any other relief to which I me be
(Doc. No. 18). He also filed a request for an evidentiary
hearing along with his response to the respondents'
motion. (Doc. Nos. 19 and 20).
Scope of Review
28 U.S.C. § 2254, a federal court may review state-court
criminal proceedings to determine whether a person is being
held in custody in violation of the United States
Constitution or other federal law. However, where the state
court has adjudicated the federal claim on the merits, this
court's review is limited by 28 U.S.C. § 2254(d) to
a determination of whether the state court's decision is
(1) directly contrary to, or an unreasonable application of,
clearly established federal law as determined by the United
States Supreme Court, or (2) based on an unreasonable
determination of the facts based on the evidence presented in
the state-court proceeding. See 28 U.S.C. §
2254(d); see generally Harrington v. Richter, 562
U.S. 86, 97-100 (2011) (“Richter”);
Williams v. Taylor, 529 U.S. 362, 399-413 (2000).
This highly deferential standard of review is often referred
to as “AEDPA deference” because it was enacted by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). E.g., Pederson v. Fabian, 491 F.3d
816, 824-25 (8th Cir. 2007); see generally Renico v.
Lett, 559 U.S. 766, 773 n.1 (2010). The reasons for the
limited review are ones of federalism and comity that arise
as a consequence of the state courts having primary
responsibility for ensuring compliance with federal law in
state criminal proceedings. See, e.g.,
Richter, 562 U.S. at 103.
exhaustion doctrine codified at 28 U.S.C. § 2254(b)-(c)
precludes granting habeas relief for claims that have not
been properly exhausted in the state courts. E.g.,
Rhines v. Weber, 544 U.S. 269, 274 (2005); Dixon
v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper
exhaustion has two components. First, the claim must be
“fairly presented, ” which requires that the
petitioner present both the factual and legal premises for
the claim, with the latter being satisfied if there is a
reference to the particular federal constitutional right or a
citation to a state or federal case that raises the
constitutional issue. Dansby v. Norris, 682 F.3d
711, 722-23 (8th Cir. 2012), vacated on other
grounds, Dansby v. Hobbs, No. 12-8582, 2013 WL
506561 (U.S. June 3, 2013); Carney v. Fabian, 487
F.3d 1094, 1096 (8th Cir. 2007). Second, the petitioner
“must give the 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).
addition, there are three other aspects of the exhaustion
doctrine that are important. The first is that the exhaustion
doctrine is satisfied if there are no state-court remedies
available and exhaustion would be futile, such as when the
claim has been procedurally defaulted at the state-court
level. E.g., Armstrong v. Iowa, 418 F.3d
924, 926-27 (8th Cir. 2005). The second is that Rose v.
Lundy, 455 U.S. 509 (1982), prohibits a petitioner from
proceeding with a “mixed petition” of exhausted
and unexhausted claims. See a l s o Rhines v. Weber,
544 U.S. at 273-74. The third is that § 2254(b)(2)
authorizes the court to deny a claim on the merits
notwithstanding a failure to exhaust. E.g.,
Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir.
federal district court is precluded from substantively
considering a habeas claim that has been procedurally
defaulted at the state level on independent and adequate
state grounds. E.g., Coleman v. Thompson,
501 U.S. 722, 729-30 (1991). State procedural grounds are
independent and adequate if they are firmly established,
readily ascertainable, and regularly followed. Barnett v.
Roper, 541 F.3d 804, 808 (8th Cir. 2008); Franklin
v. Luebbers, 494 F.3d 744, 750 (8th Cir. 2007). They
must also further a legitimate state interest and not be
applied in an exorbitant manner. Barnett, 541 F.3d
at 808. The rule barring procedurally-defaulted claims is
nearly absolute. Cagle v. Norris, 474 F.3d 1090,
1099 (8th Cir. 2007). The only exceptions are the rare