Opinion
4:24-CV-04059-RAL
05-07-2024
ROBERT REILLY LADENBURGER, Petitioner, v. STATE OF SOUTH DAKOTA; ATTORNEY GENERAL FOR THE STATE OF SOUTH DAKOTA, Respondents.
REPORT & RECOMMENDATION
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
On March 29, 2024, this court received a habeas petition pursuant to 28 U.S.C. § 2254 on behalf of Robert Reilly Ladenburger, filed with assistance from third-party preparer Matthew Carter. Docket No. 1. Both Mr. Ladenburger and Mr. Carter are currently incarcerated at the South Dakota State Penitentiary pursuant to state court criminal judgments of conviction.Because Mr. Ladenburger's pleading did not contain many of the essential details and facts necessary to screen his petition, the court requested him to fill out a standard § 2254 form which, when properly filled out, would provide the court with those missing facts. Docket No. 3. Mr. Ladenburger expressly declined to comply with the court's request. Docket No. 5 at p. 3. Accordingly, this court has screened Mr. Ladenburger's petition pursuant to Rule 4 of the Rules Governing § 2254 Cases given the available information.
Offender Locator, S.D. DEP'T OF CORR., https://doc.sd.gov/adult/lookup/ (last visited May 6, 2024).
Mr. Ladenburger requests that this magistrate judge not handle any matter associated with his § 2254 petition. Docket No. 5 at p. 3. The court politely declines that request.
FACTS
According to the South Dakota Department of Corrections offender locator website, Mr. Ladenburger is currently serving a 25-year sentence of imprisonment for first-degree manslaughter imposed in Davison County on October 5, 2021.His term expires on August 26, 2044; he will be eligible for consideration of parole on August 27, 2038.
Offender Locator, supra note 1.
Id.
Mr. Ladenburger states he was convicted of violating SDCL § 22-1615(3), manslaughter in the first degree through the use of a dangerous weapon but without any design to effect death. Docket No. 1 at pp. 3-4. He names the victim of his crime as Rodney Lee Bahm. Id. at p. 4. Mr. Ladenburger states he pleaded guilty and established a factual basis for that plea at a court hearing on August 17, 2021, at which he was represented by two defense attorneys. Id. Following Mr. Ladenburger's plea, the court made findings of fact that his plea was voluntary, knowing and intelligent; that he was represented by competent counsel; and that a factual basis existed in support of the plea. Id.; Docket No. 1-1 at p. 4.
Mr. Ladenburger admits that this § 2254 petition is not timely. Docket No. 5 at p. 1. He also admits that he has procedurally defaulted his claims by never raising them in any state court. Cf. Docket No. 1 at pp. 14-15; cf. Docket No. 5 at pp. 1-3.
In his federal habeas petition filed in this court, Mr. Ladenburger asserts four claims. He claims the state sentencing court violated his Eighth Amendment right to be free from cruel and unusual punishment when it sentenced him to 25 years' imprisonment. Docket No. 1 at pp. 2-3, 9. He also alleges that the circuit court deprived him of his right to equal protection as guaranteed by the Fourteenth Amendment. Id. at p. 3. He alleges his Sixth Amendment right to competent assistance of counsel was violated when his trial lawyers failed to object to his 25-year sentence when the maximum penalty for the crime of first-degree manslaughter was only 15 years. Id. Finally, Mr. Ladenburger claims that the combination of these three errors deprived him of his Due Process rights under the Fourteenth Amendment. Id. at pp. 3-4.
This court has reviewed Mr. Ladenburger's petition and, even accepting the factual allegations he makes (though rejecting the legal conclusions he asserts), this court concludes his claims are frivolous and cannot result in relief. Accordingly, this magistrate judge recommends dismissal on screening under Rule 4 without requiring the service of Mr. Ladenburger's petition on respondents and requiring respondents to file a response thereto.
DISCUSSION
A. Mr. Ladenburger's Petition is Untimely
Petitions for habeas relief in federal court collaterally attacking state court convictions are governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). AEDPA contains a one-year statute of limitations which provides in relevant part:
(d) (1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
See 28 U.S.C. § 2244(d)(1) and (2).
A judgment or state conviction is final, for purposes of commencing the statute of limitation period, at either:
(1) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or
(2) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). The time allotted for filing a petition for writ of certiorari with the Supreme Court is ninety days. Jihad v. Hvass, 267 F.3d 803, 804 (8th Cir. 2001). If no appeal was taken, then a conviction becomes final upon the expiration of the time allowed under state law for pursuing a direct appeal. King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012) (citation omitted). Mr. Ladenburger did not file a direct appeal, so his conviction became final 30 days after it was entered: November 4, 2021. See SDCL 23A-32-15; see also Docket No. 1-1 at p. 5.
The statute of limitations for § 2254 petitions is subject to statutory tolling. See 28 U.S.C. § 2244(d)(2). The one-year period does not include the time during which a properly filed application for state post-conviction relief or other collateral review is pending in state court. Id.; Faulks v. Weber, 459 F.3d 871, 873 (8th Cir. 2006); 28 U.S.C. § 2244(d)(2). The phrase “post-conviction or other collateral review” in § 2254's tolling provision encompasses the “diverse terminology that different States employ to represent the different forms of collateral review that are available after a conviction.” Duncan v. Walker, 533 U.S. 167, 177 (2001). Thus, § 2254's tolling provision “applies to all types of state collateral review available after a conviction.” Id.
Mr. Ladenburger did not file any state habeas petitions or otherwise seek any collateral review of his judgment in state courts. Docket No. 5 at pp. 1-2. Therefore, the statutory tolling provided under § 2244(d)(2) does not apply to his case. His AEDPA limitations period expired, therefore, on November 4, 2022, 17 months prior to his filing of his instant petition with this court.
The court notes the one-year AEDPA statute of limitations is not a jurisdictional bar. Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003) (citation omitted). The time limit is subject to equitable tolling when “extraordinary circumstances” beyond a prisoner's control make it impossible to file a petition on time. Id. A petitioner seeking equitable tolling must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The decision whether to equitably toll AEDPA's limitations period is a fact-intensive inquiry based upon the totality of the circumstances. Id. at 649-50. Equitable tolling represents “an exceedingly narrow window of relief.” Shoemate v. Norris, 390 F.3d 595, 597 (8th Cir. 2004) (quoting Jihad, 267 F.3d at 805).
Mr. Ladenburger acknowledges that his petition is untimely. Docket No. 5 at p. 1. In order to excuse his untimely petition, he argues that his trial lawyer told him he had no right to appeal his conviction and sentence. Id. Ineffective assistance of counsel can at times provide “cause” to excuse a procedural default, such as missing the statute of limitations filing deadline. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, even if there is justifiable cause, there must be prejudice. As discussed below, Mr. Ladenburger's claims fail on their merits, so there is no prejudice.
Furthermore, in the context of an untimely claim, a petitioner must show that he acted with reasonable diligence. Holland, 560 U.S. at 653. A petitioner can show diligence by demonstrating that he wrote letters to his attorney asking them to file a habeas petition, that he contacted the court to find out what the status of his case was, and other such actions showing he reasonably sought to pursue his claims. Williams v. Kelley, 830 F.3d 770, 773 (8th Cir. 2016). Here, two and a half years elapsed between the time Mr. Ladenburger's conviction became final and his filing of his federal habeas petition. Although he says his lawyer told him he could not file a direct appeal, he gives the court no facts to show that he otherwise sought to educate himself about his case and his rights or otherwise pursue his claim. For all these reasons-failure to show prejudice and failure to show reasonable diligence-this magistrate judge recommends dismissing Mr. Ladenburger's claims as untimely.
B. Procedural Default
Federal habeas review of state court convictions is limited in that each claim must first have been presented to the state courts before being presented to the federal courts:
(b)(1) 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) circumstances exist that render such process ineffective to protect the rights of the applicant.
* * *
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Mr. Ladenburger acknowledges that his claims are procedurally defaulted, but he asserts he can demonstrate that a miscarriage of justice has occurred which would excuse his procedural default. Docket No. 1 at pp. 1418. When a state prisoner has procedurally defaulted his claims by not presenting them in state court, a federal court may consider the merits of those claims if the prisoner can show (1) legal cause excusing the default and prejudice resulting or (2) if the prisoner can show that a fundamental miscarriage of justice has occurred. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
A claim of actual innocence is (so far) the only type of fundamental miscarriage of justice recognized by the Supreme Court. See McQuiggin v. Perkins, 569 U.S. 383, 392-93 (2013). In fact, the Eighth Circuit has stated that “even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim” unless there is also new evidence of actual innocence. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). Mr. Ladenburger states repeatedly that he is not asserting that he is actually innocent, only that his sentence was cruel and unconstitutional. Docket No. 1 at pp. 9, 19. As will be discussed at further length below, Mr. Ladenburger's sentence is neither illegal nor unconstitutional. It is not, therefore, a “fundamental miscarriage of justice” which would excuse his procedural default.
C. Cruel and Unusual Punishment
Mr. Ladenburger asserts that the maximum penalty for manslaughter is 15 years' imprisonment. Docket No. 1 at p. 7. However, he cites to federal law in support of this assertion. Id. (citing 18 U.S.C. § 1112). In order for the crime described at 18 U.S.C. § 1112 to apply, the crime must have been committed “within the special maritime and territorial jurisdiction of the United States.” See 18 U.S.C. § 1112(b).
“Special maritime and territorial jurisdiction” is defined as the high seas and any other waters within the admiralty jurisdiction of the United States; United States vessels operating upon the waters of the Great Lakes, the Saint Lawrence River or the International Boundary Line; any lands reserved or acquired for the use of the United States and under the exclusive or concurrent jurisdiction thereof; any island, rock or key considered by the President to be part of the United States; any aircraft belonging to the United States or a citizen thereof; any vehicle used or designed for flight or navigation in space and registered with the United States; any foreign vessel during a voyage having a scheduled departure from or arrival in the United States. 18 U.S.C. § 7. In addition, crimes committed in Indian country may also fall within the purview of § 1112. See 18 U.S.C. §§ 1151-53. No part of any Indian reservation in South Dakota is located in Davison County nor does Davison County fit within any other part of the definition of “special maritime and territorial jurisdiction of the United States.” Therefore, South Dakota state law sets the penalty for Mr. Ladenburger's state court criminal conviction, not federal law.
Under state law, first-degree manslaughter is classified as a class C felony. SDCL § 22-16-15. Under South Dakota law, a class C felony is punishable by a maximum of life imprisonment and a fine of $50,000. SDCL § 22-6-1(3). The sentence actually imposed by the state circuit court in Mr. Ladenburger's case was less than the statutory maximum of life imprisonment-instead he received a sentence of 25 years' imprisonment. Therefore, Mr. Ladenburger's sentence did not violate the Eighth Amendment due to exceeding the statutory maximum.
The Eighth Circuit “has never held that a sentence within the statutory range violates the Eighth Amendment.” United States v. Walker, 917 F.3d 1004, 1011 (8th Cir. 2019) (quoting United States v. Patten, 664 F.3d 247, 252 (8th Cir. 2011)). Mr. Ladenburger's sole claim that his sentence constitutes cruel and unusual punishment is the fact that the sentence imposed was greater than the statutory maximum sentence for manslaughter under federal law. As already explained above, the federal penalty is not applicable to Mr. Ladenburger. And, because the sentence he received was within the statutory maximum allowed by state law, it was not cruel and unusual. Id.
D. Ineffective Assistance of Counsel
Mr. Ladenburger also asserts that his trial counsel were constitutionally ineffective for failing to object to his unconstitutional sentence that exceeded the statutory maximum of 15 years' imprisonment. The Sixth Amendment of the Constitution of the United States affords a criminal defendant with the right to assistance of counsel. U.S. CONST. amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the right to effective assistance of counsel.' ” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Strickland is the benchmark case for determining if “counsel's assistance was so defective as to” violate a criminal defendant's Sixth Amendment rights and “require reversal of a conviction.” Id. at 687; United States v. Kehoe, 712 F.3d 1251, 1253 (8th Cir. 2013).
“When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. The defendant must also show that counsel's unreasonable errors or deficiencies prejudiced the defense and affected the judgment. Id. at 691-92.
Here, Mr. Ladenburger can show neither prong of the Strickland test. His sentence was not in excess of the statutory maximum of life imprisonment (as explained in the preceding section), and, therefore, counsel was not deficient in failing to object to the sentence as outside the statutory maximum. Had counsel made such an objection, it would have been overruled, so there is no prejudice to Mr. Ladenburger because counsel failed to lodge such an objection. This claim lacks any merit and should be dismissed as frivolous.
E. Equal Protection
Mr. Ladenburger asserts that his sentence violates his equal protection rights guaranteed under the Fourteenth Amendment. The essence of an equal protection claim is that the claimant belongs to a particular class of individuals and that claimant's class is treated differently than a comparison group even though the two groups are similarly situated. See, e.g., Texas v. Lesage, 528 U.S. 18, 19-21 (1999) (per curiam).
Although Mr. Ladenburger does not explicitly so state, it appears that he may be claiming that South Dakota state prisoners convicted of manslaughter are the disadvantaged group and that the comparison group consists of federal prisoners convicted of manslaughter. Unless discrimination is based upon a fundamental right or a protected status such as race, religion, national origin, or sex, an equal protection claim is subject to the rational basis test: Mr. Ladenburger must show that the differential treatment “bears no rational relation to any legitimate penal interest [or governmental interest].” Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (quoting Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998)). See also Hughes v. City of Cedar Rapids, 840 F.3d 987, 996 (8th Cir. 2016); Cody v. Bowers, 4:19-CV-04026-RAL, 2019 WL 4454547, at *3 (D.S.D. June 28, 2019) (citations omitted). Where discrimination is based on geographic location, such discrimination is subject to the rational basis test. Ingram v. United States, 296 F.Supp.3d 1076, 1083-84 (N.D. Iowa 2017).
In an analogous case in which a claimant asserted an equal protection claim based on geographic location of his disadvantaged group, the court held he was required to show not only that he and the comparator group were charged with the same general type of crime-for example, drug trafficking- but that the comparator group was charged under the same exact statute involving the same conduct (in a drug trafficking example, the same controlled substance). Id. at 1086-87.
Of course, here, Mr. Ladenburger cannot show that he was convicted under the same statute as his federal counterparts. Therefore, this court concludes he cannot make out a prima facie equal protection case by comparing himself with criminal defendants who are charged under 18 U.S.C. § 1112. Id. at 1088 (rejecting Ingram's equal protection claim because he could not show the minimum similarities between himself and comparator defendants charged in another jurisdiction). The court recommends this claim be dismissed as frivolous.
F. Combination of Errors
Finally, Mr. Ladenburger claims that the combination of all of the above constitutional errors deprived him of due process as guaranteed under the Fourteenth Amendment. The Eighth Circuit does not recognize as grounds for habeas relief the cumulation of all of a petitioner's claims. Henderson v. Norris, 118 F.3d 1283, 1288 (8th Cir. 1997); Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990). Instead, each claim made by a habeas petitioner such as Mr. Ladenburger must “stand or fall on its own.” Scott, 915 F.3d at 1191. Accordingly, the court recommends this claim be dismissed as well.
CONCLUSION
As required by Rule 4 of the Rules Governing § 2254 Habeas Cases, this court has screened Mr. Ladenburger's petition and concludes that “it plainly appears from the petition and [the] attached exhibits that the petitioner is not entitled to relief in the district court.” Mr. Ladenburger's claims are untimely and procedurally defaulted. He has not demonstrated grounds that would excuse each of those defaults. Finally, even considering Mr. Ladenburger's claims on the merits, each of them fail. Accordingly, this magistrate judge respectfully recommends dismissing Mr. Ladenburger's petition with prejudice.
NOTICE OF RIGHT TO APPEAL
Robert Reilly Ladenburger is hereby notified he has fourteen (14) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. See FED. R. CIV. P. 72; 28 U.S.C. § 636(b)(1)(B). Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Id. Objections must be timely and specific in order to require de novo review by the District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).