United States District Court, D. North Dakota
ORDER GRANTING MOTION TO DISMISS
R. HOCHHALTER UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Dismiss Section 2254 Petition filed
by the Respondent on January 15, 2019. (Doc. No. 8). The
Respondent seeks dismissal of this action. In the
alternative, she requests additional time to file a
substantive response to the Petitioner's habeas petition.
For the reasons set forth below, the Motion to Dismiss
Section 2254 Petition is granted and the request for
additional time is deemed moot.
Petitioner was convicted in State No. 08-2017-CR-03178 of
terrorizing. Petitioner pleaded guilty to the charge and
received a sentence of one-year deferred imposition, a
one-year term of unsupervised probation, and community
service. Sometime thereafter, petitioner, a green card
holder, was taken into Immigration and Customs Enforcement
(“ICE”) custody. Petitioner is currently
incarcerated at the Sherburne County Jail in Elk River,
November 5, 2018, the Petitioner filed a petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody. (Doc. No. 2). On January 3, 2019, the Court
issued an order substituting Leann Bertsch, the Director of
the North Dakota Department of Corrections and
Rehabilitation, as the named respondent. (Doc. No. 6).
January 15, 2019, the Respondent filed a Motion to Dismiss
Section 2254 Petition. She asserts the Petitioner failed to
exhaust his state court remedies as required by 28 U.S.C.
§ 2254, a federal court may review state court criminal
proceedings to determine whether a person is being held in
violation of the United State Constitution or other federal
law. This review is limited because, as a matter of
federalism and comity, primary responsibility for ensuring
compliance with federal law in state court criminal
proceedings rests with the state courts. Consequently,
federal court intervention is limited under § 2254(d) to
the instances in which a person is being held in custody
pursuant to a state court decision that (1) is directly
contrary to established federal law as enunciated by the
United States Supreme Court, (2) is an objectively
unreasonable application of Supreme Court precedent, or (3)
is based on an unreasonable determination of the facts based
on the evidence presented in the state court proceeding.
See generally Woodford v. Visciotti, 537 U.S. 19,
26-27 (2002) (per curium); Williams v. Taylor, 529
U.S. 362, 399-413 (2000); Williams v. Taylor, 529
U.S. 420, 436-37 (2000).
2254 contains additional rules and procedures for ensuring
that state court convictions are given the maximum effect as
allowed by law and to limit federal court
“retrials” of state court criminal proceedings
under the guise of federal habeas corpus. See Bell v.
Bradford, 535 U.S. 685, 693 (2003). Under §
2254(b), a federal court may only consider habeas claims that
have been first properly presented to the state courts and
exhausted using available state law procedures. See
e.g., Rhines v. Weber, 125 S.Ct. 1528, 1533
(2006); Dixon v. Dormire, 263 F.3d 774, 777 (8th
Cir. 2001). With limited exceptions, claims that have been
procedurally defaulted at the state level are not subject to
review in federal court.
clear the Petitioner did not exhaust his available state
court remedies prior to initiating the above-entitled action.
The Register of Actions in State No. 08-2017-CR-03178 shows
that the Petitioner has not filed an application for
post-conviction relief in state court. Under N.D.C.C. §
29-31.1-01 a state application for post-conviction relief
must be filed within two years of the date the conviction
becomes final. Because Petitioner was sentenced on December
11, 2017, and filed no appeal, his conviction became final
thirty days after the entry of judgment-January 10,
2018. Therefore, Petitioner is still well within
the two-year time period to file an application for
post-conviction relief in state court. Because Petitioner has
failed to exhaust state remedies his habeas petition must be
CERTIFICATE OF APPEALABILITY
28 U.S.C. § 2253(c)(2), a certificate of appealability
may be issued only if the applicant has made a substantial
showing of the denial of a constitution right. When the court
has rejected a petitioner's claim on the merits, the
substantial showing required is that the “petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Miller-El v. Cockrell,
537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)); see also United States v.
Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005);
Garrett v. United States, 211 F.3d 1075, 1076-77
(8th Cir. 2000); When the court denies a petitioner's
claim on procedural grounds without reaching the merits, the
petitioner must demonstrate that reasonable jurists would
find it debatable that a valid claim for the denial of
constitutional rights has been stated and that the district
court was correct in its procedural ruling. Slack,
529 U.S. at 484.
case, reasonable jurists would not find debatable the
court's dismissal of Robinson's petition on the
grounds that it is untimely. Consequently, the court will not
issue a certificate of appealability.