Opinion
4:23-CV-04199-RAL
07-01-2024
TRAVIS R. MCPEEK, Petitioner, v. ATTORNEY GENERAL; ALEX REYES, Acting Warden at Mike Durfee State Prison, Respondents.
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
This matter is before the court on Travis McPeek's pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Docket No. 1. Mr. McPeek seeks a new trial where evidence obtained in alleged violation of the Fourth Amendment is suppressed. Id. at p. 15. He further seeks a different trial venue. Id. In the alternative, Mr. McPeek seeks a reduction to his sentence “in compliance with federal case precedent/law.” Id. Respondents, the Attorney General of South Dakota and Alex Reyes, acting warden of Mike Durfee State Prison (collectively “the State”), move the court for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Docket No. 8. The matter has been referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and DSD L.R. CIV 72.1(A)(2)(b).
The Attorney General was added as a respondent through the standard practice of the clerks in the District of South Dakota. While generally, the attorney general of a state is not the proper respondent in a § 2254 petition, Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), the State did not object to this joinder and the court considers the argument waived. See id. at 452 (Kennedy J., concurring); see also id. at 434 n.7 (opinion of the court).
At the request of both parties, the court, pursuant to Federal Rule of Evidence 201(c)(2), takes judicial notice of Mr. McPeek's underlying state court records. See Docket No. 8 at pp. 3-4; Docket No. 12 at p. 3. The court denies the State's requests that the court take judicial notice of maps and distances between places. See, e.g., Docket No. 9 at p. 24 nn. 2-3. These facts are unnecessary for the adjudication of the matter. Cravens v. Smith, 610 F.3d 1019, 1029 (8th Cir. 2010).
A. Incident at Frank's Trading Post and Arrest
On August 6, 2016, Desiree Fischer and her mother, Terry Rothlisberger, were traveling eastbound on South Dakota State Highway 50 in the direction of the nearby city of Tyndall. Criminal Record at pp. 648-49, 663-64. A white pickup passed them in a manner that required them and an oncoming semi to pull to their respective shoulders to avoid collision. Id. at pp. 656, 668, 691. Fischer and Rothlisberger decided to call the situation into the police as a nonemergency. Id. at pp. 665-67. When they saw the pickup in the parking lot of Frank's Trading Post in Tyndall, they pulled in, retrieved the plate number, and pulled around to a hidden side of the building to park and call the police. Cf. id. at pp. 666-67.
Citations to Mr. McPeek's state court criminal record, State v. McPeek, 04CRI16-000050 (S.D. 1st Cir., Bon Homme Cnty.) will be cited as “Criminal Record.” Citations to Mr. McPeek's criminal appeal record, State v. McPeek, 28464 (S.D.) will be cited as “Appeal Record.” Citations to Mr. McPeek's state habeas record, McPeek v. Fluke, 04CIV19-000007 (S.D. 1st Cir., Bon Homme Cnty.) will be cited as “Habeas Record.” Pinpoint citations reflect page numbers relative to their position in the .pdf file.
Shortly thereafter, Tyndall Police Officer Kelly Young arrived at Frank's, and parked in front of the store. Id. at pp. 687, 689. The vehicle he was driving was a white Chevy Tahoe that read “Tyndall Police Department” on both sides. Id. at p. 285. When he exited his vehicle, he was called over to the corner of the store by Ms. Rothlisberger. Id. at p. 690. Ms. Rothlisberger recounted what had happened on the highway, and Officer Young explained that he could not issue a citation but would get the driver's information so that Mr. Rothlisberger could file a complaint with the attorney general. Id. at pp. 64, 691.
At this time, Ms. Rothlisberger identified two individuals exiting the store as the occupants of the pickup. Id. at p. 64. Officer Young instructed Ms. Rothlisberger to stay by her vehicle and proceeded to the pickup truck. Id. at pp. 691-92. At this point, he crossed paths with the passenger, Darnel Robinson, but the driver, Travis McPeek, was already in the pickup. Id. at pp. 79, 289, 692, 718. Officer Young noticed a pit bull or similar breed of dog in the truck. Id. at p. 693.
The driver's side window was already part-way down as Officer Young approached, and Mr. McPeek lowered it a bit further. Id. at p. 693. Officer Young was wearing a polo shirt with his badge embroidered on it, black duty pants, handcuffs, and a badge on his belt next to his gun. Id. at p. 688. Mr. McPeek was “doing something” with the food and drinks he had just purchased from the store. Id. at pp. 766, 768. The dog was also barking and/or growling and was told to be quiet by Mr. McPeek. Id. at p. 768-69.
Officer Young leaned up against the truck, identified himself to Mr. McPeek, explained about the complaint, and “told him [he] needed to see his driver's license and registration and proof of insurance.” Id. at p. 773. Mr. McPeek replied “Fuck you. I'm a lawyer. I don't have to give you anything” as he began to roll the window back up. Id. at p. 777. Based on that response and seeing Mr. McPeek “reaching around in the pickup quite a bit,” Officer Young decided to open the door, believing an unobstructed view of the passenger compartment was best for his safety. Id. at pp. 777-78. Officer Young further believed he had authority to open the door based on Mr. McPeek's refusal to produce his identifying documents. Id. at pp. 779-80. After opening the door, Officer Young told Mr. McPeek he did not believe that he was a lawyer and repeated the demand for his documents. Id. at pp. 779, 782-83.
Rather than provide Officer Young his identification, Mr. McPeek put the truck into reverse. Id. at p. 694. Officer Young reached into the truck in an attempt to shift the truck back into park. Id. at p. 695. He also attempted to hang onto the truck as it backed up. Id. He heard the tires squeal. Id. He hollered a few times for Mr. McPeek to stop and attempted to reach down to his holster to grab his gun. Id. At this point, he lost his balance and fell to the ground, knocking his head against the cement. Id. at pp. 695, 707. Officer Young believes his foot was also run over by the truck. Id. at p. 790.
Mr. McPeek pulled out of the station, heading west on Highway 50. Id. at pp. 671-72, 702. Officer Young hobbled to his vehicle for safety, and then decided to pursue Mr. McPeek. Id. at p. 702. Officer Young drove as far as Avon but never caught up with the truck. Id. at p. 703. At that point, he abandoned the pursuit and headed toward the hospital in Tyndall to tend to his injuries. Id. at pp. 703-04.
Along the way to the hospital, Officer Young saw Darnel Robinson, the former passenger of the pickup truck, walking along the highway. Id. at p. 704. Mr. Robinson had never gotten back in the pickup before the incident occurred. Id. Officer Young pulled up next to Mr. Robinson and requested that he come to the hospital to speak to officers. Id. at pp. 704-05. Mr. Robinson consented and entered the vehicle. Id. at p. 705. At the hospital, Mr. Robinson assisted Officer Young in getting out of the vehicle and into a wheelchair. Id.
For injuries, Officer Young sustained one or more injured and possibly fractured ribs, a “large hematoma [on the back of his skull] with a laceration requiring sutures to repair,” a “crush injury” to his right foot, and postconcussion syndrome, which includes “extreme nausea, vomiting, blurred vision, [and] severe headaches.” Id. at pp. 722-25. As of the date of the trial, Officer Young still retained a bump on his back and continued to suffer back spasms from the fall. Id. at pp. 712-13. His doctors told him that “it could go away or it could be a nagging injury for life.” Id. at p. 713.
About a month after the incident, Mr. McPeek was located and arrested in Mesa, Arizona. Id. at p. 830.
B. Mr. McPeek's Criminal Proceedings
Mr. McPeek was indicted in the South Dakota First Judicial Circuit Court, Bon Homme County, on one count of aggravated assault against law enforcement officer, in violation of SDCL §§ 22-18-1.05 and 22-18-1.1(2), “in that he did attempt to cause or knowingly cause bodily injury to another with a dangerous weapon. Said victim was a law enforcement officer, City Police Officer, Kelly Young and he was engaged in the performance of his duties. Said dangerous weapon was an automobile.” Id. at p. 15.
He was also indicted on one count of aggravated assault against law enforcement officer, in violation of SDCL §§ 22-18-1.05 and 22-18.1.1(4), “in that he did assault another with the attempt to commit bodily injury which resulted in serious bodily injury. Said victim was a law enforcement officer, City Police Officer, Kelly Young and he was engaged in the performance of his duties.” Id.
The court appointed Lucille Youngberg as Mr. McPeek's counsel. Id. at p. 27. Ms. Youngberg filed a motion to suppress evidence “on the grounds that [Mr. McPeek's] vehicle was stopped without a warrant and without probable cause or reasonable suspicion.” Id. at p. 39. She also filed a motion for change of venue, noting the publicity related to the incident, and “gossip and innuendo” in a small-sized city such as Tyndall, which had “risen to the level where there [was] prejudice in the minds of the county residents.” Id. at pp. 40-41. The court denied the motion to suppress on the grounds that there was nothing to suppress, i.e., “there [was] nothing that was taken.” Id. at pp. 306-07. The court denied the motion for change of venue because the grant of such a motion required “[s]omething greater than what [was] alleged by the defendant,” and “the simple fact that there [was] publicity [did] not preclude a fair and impartial jury.” Id. at p. 307.
Ms. Youngberg filed a motion to withdraw as counsel due to Mr. McPeek's hostility toward her. Id. at p. 114. Mr. McPeek also filed a motion for new counsel, citing, inter alia, Ms. Youngberg's “inadequate and ineffective” representation and “lack of knowledge of the law.” Id. at pp. 13132. The court granted the motions and appointed Attorney Garrett Horn to be trial counsel. Id. at p. 134.
A two-day jury trial began on July 26, 2017. Id. at p. 598. A unanimous jury returned a guilty verdict on both counts after seventeen minutes of deliberation. Id. at pp. 887-89. The jury was polled, and all members affirmed the verdict. Id. at pp. 889-90.
On August 7, rather than proceed to trial on the matter of Mr. McPeek's Part II information, the court was informed that Mr. McPeek and the State had entered into an (apparently verbal) agreement where Mr. McPeek would admit to the Part II information and the State would agree to cap its sentencing recommendation at 25 years. Id. at p. 935. The court informed Mr. McPeek that with the Part II enhancement, he was facing a maximum of life imprisonment on his charges. Id. at p. 939. Mr. McPeek affirmed to the court that he understood this. Id. The court informed Mr. McPeek that the court was not bound by the State's 25-year cap agreement. Id. at p. 941. Mr. McPeek affirmed that he understood this. Id. The court accepted Mr. McPeek's plea of guilty to the Part II information. Id. at pp. 944-45.
A Part II information is a device used in South Dakota “to prove the allegation that the defendant is an habitual criminal.” SDCL § 22-7-11; see, e.g., State v. Ganrude, 499 N.W.2d 608, 609 (S.D. 1993) (per curiam).
Because both of Mr. McPeek's charges arose from the same crime, the court only sentenced Mr. McPeek as to Count 1. Id. at pp. 450, 946. The court sentenced Mr. McPeek to 25 years “because [he] agreed to it.” Id. at p. 958. The court discussed Mr. McPeek's “attitude towards other people,” and questioned whether Mr. McPeek had the ability to change it. Id. at 956-58. The court felt the sentence imposed was “about right” to provide Mr. McPeek the opportunity to rehabilitate and exit custody in a way that would allow him to “have a productive life.” Id. at p. 958-59.
C. Mr. McPeek's Appeal
Mr. McPeek appealed his conviction on five grounds:
(1) Whether there [was] sufficient evidence for a reasonable juror to convict McPeek of Aggravated Assault Against Law Enforcement Officer Count 1 (SDCL 22-18-1.1(2) and SDCL 22-18-1.05) and Count 2 (SDCL 22-18-1.1(4) and SDCL 2218-1.05).
(2) Whether Officer Young's detainment of McPeek was an unreasonable seizure, and therefore there was insufficient evidence for a reasonable juror to convict McPeek.
(3) Whether the trial court abused its discretion by permitting a misleading jury instruction regarding whether the driver of a vehicle must provide identification to law enforcement.
(4) Whether the trial court's sentence of McPeek was overly harsh in light of the circumstances.
(5) Whether the trial court erred by denying McPeek's motion for change of venue.Appeal Record at pp. 7-9.
The South Dakota Supreme Court summarily affirmed on November 19, 2018. State v. McPeek, 921 N.W.2d 687 (S.D. 2019) (table).
D. Mr. McPeek's State Habeas Case
Mr. McPeek timely filed a pro se state habeas petition on January 17, 2019. Habeas Record at p. 7; Docket No. 7 at p. 5. The stated grounds for relief were:
(1) Petitioner's right to a fair and impar[t]ial jury was violated by not allowing a change of venue, by prosecutorial misconduct, and the allow[a]nce of purged and unconstitutionally acquired testimony.
(2) The Petitioner's Fourth Amendment rights were violated when officer Kelly Young searched and seized Petitioner and Petitioner's vehicle without probable cause or reasonable suspicion.
(3) Petitioner's right to be free from cruel and unusual punishment found in Article VI. section 23 of the South Dakota Constitution and also found in the Eighth Amendment of the U.S. Constitution, applied to the States via the Fourteenth Amendment Due Process Clause, was violated. Petitioner's right to be free from cruel and unusual punishment was violated because the sentence imposed by the Judge was unconstitutionally harsh and excessive in light of the circumstances of the Petitioner's case.
(4) Petitioner's right to effective counsel, as guaranteed under the Sixth Amendment to the U.S. Constitution, and applied to the States via the Fourteenth Amendment Due Process Clause, and also found in Article VI, section 7 of the South Dakota Constitution, was violated in that Petitioner's trial attorney did not use any of the available witnesses for Petitioner, nor use expert witnesses, did not depose any witnesses, use a private investigator nor provide or use discovery materials.Habeas Record at pp. 7-8.
The state habeas court appointed Attorney Brooke Swier-Schloss as counsel for Mr. McPeek. Id. at p. 20. Attorney Swier-Schloss determined the habeas matter to be a “Korth Brief situation.” Id. at p. 36. Accordingly, she filed Part A of that brief. Id. at pp. 43-60. For Part B, a letter from Mr. McPeek was included that resisted the brief's filing and stated his desire to proceed pro se. Id. at pp. 68-69. Mr. McPeek then moved the court to allow him to proceed pro se, accusing Ms. Swier-Schloss of working on behalf of the defense. Id. at pp. 39-42. The court granted that motion and ordered Mr. McPeek to file an amended Part B in twenty days. Id. at pp. 88-89.
Under South Dakota law, a petitioner's appointed counsel may file a Korth brief, which is the state's corollary to a federal Anders brief. See generally State v. Korth, 650 N.W.2d 528 (S.D. 2002); Hughbanks v. Dooley, 887 N.W.2d 319, 319-20 (S.D. 2016) (Korth brief filed in habeas context); Anders v. California, 386 U.S. 738 (1967). In Part A of the brief, counsel includes “a statement that counsel has not identified any arguably meritorious issues on appeal.” State v. Kwai, 994 N.W.2d 712, 716 (S.D. 2022). In Part B of the brief, issues are “presented at the client's request.” Id.
On March 30, 2020, Mr. McPeek filed his “Petitioner's Pro Se State Habeas Corpus / Part B.” Id. at p. 153. The issues presented were:
(1) Ineffective Assistance of Counsel Regarding Change of Venue Issues Not Argued
(2) Ineffective Assistance of Counsel of Not Calling Any Witnesses
(3) Ineffective Assistance of Counsel Regarding Petitioner's Constitutional Right to be Free from Unreasonable Searches and Seizures
(4) Ineffective Assistance of Counsel Regarding Issues with the Grand Jury Indictment
(5) Ineffective Assistance of Counsel Regarding Contact with Petitioner and Access to the Courts
(6) Ineffective Assistance of Counsel Regarding Perjury, Fraud, False, Fabricated and Misleading Statements
(7) Other Ineffective Assistance of Counsel Issues
(a) Timing of Opening Statement
(b) Temperature of the Courtroom
(c) Inaction of Counsel to Seek Reasoned Opinion from South Dakota Supreme Court
(d) Failure to Raise Entrapment Defense
(e) Inaccuracy of Judgment of Conviction's statement that Mr. McPeek Took a Plea Agreement
(f) Failure to Seek Recusal of Judge Eng, who Mr. McPeek had Filed a Complaint Against Related to the Suppression Hearing
(g) Failure to Bring Officer Young's “Fraudulent” Workmen's Compensation Claims to the Jury's Attention
(8) Issues with Sentencing
(9) Issues with the Habitual OffenderId. at pp. 153-65.
The court granted the State's motion to dismiss. Id. at pp. 345-59. It presumably denied Mr. McPeek's certificate for probable cause to appeal. Cf. id. at p. 384. On February 27, 2023, the South Dakota Supreme Court denied Mr. McPeek's motion for certificate of probable cause. Id.
A filing exists in the Habeas Record at pp. 380-81 that is titled “Order: Regarding Certificate of Probable Cause- Judge Denied.” It consists of a blank template that would allow a judge to either grant or deny the certificate. See id. The court infers, by virtue of the South Dakota Supreme Court's denial of the certificate, that it was first denied at the circuit court level. See SDCL § 2127-18.1.
On November 27, 2023, Mr. McPeek filed his federal habeas petition. Docket No. 1. The State concedes its timeliness. Docket No. 7 at p. 5.
DISCUSSION
A. Applicable Legal Standards
1. Motion for Judgment on the Pleadings in Habeas Context
For purposes of the instant matter, judgment on the pleadings is appropriate when pleadings have closed and the moving party is entitled to judgment as a matter of law. Country Preferred Ins. Co. v. Lee, 918 F.3d 587, 588 (8th Cir. 2019) (per curiam); Curry v. Pyramid Life Ins. Co., 271 F.2d 1, 5 (8th Cir. 1959) (citation omitted). In the ordinary civil context, a court considering judgment on the pleadings “must accept as true all factual allegations set out in the complaint, and must construe the complaint in the light most favorable to the plaintiff, drawing all inferences in his favor.” Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). But 28 U.S.C. § 2254, the primary statute governing habeas procedure for state prisoners, bestows extreme deference on the underlying factual findings and legal conclusions of state courts. Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (en banc). And because that statute's commands trump those of Rule 12(c), see FED. R. CIV. P. 81(a)(4)(A), the court's decision whether the State is entitled to judgment as a matter of law must be guided by the standards of the statute.
2. Scope of a § 2254 Petition
A state prisoner who believes he is incarcerated in violation of the Constitution or laws of the United States may file a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) constrains federal courts to exercise only a “limited and deferential review of underlying state court decisions.” Osborne v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005) (citation omitted). A federal court may not grant a writ of habeas corpus unless the state court's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, (2000). A federal habeas court may not issue the writ merely because it concludes the state court applied the clearly established federal law erroneously or incorrectly. Id. at 411. “Rather, that application must also be unreasonable.” Id. (emphasis added).
The state court's factual findings are presumed to be correct, and a federal habeas court may not disregard the presumption unless specific statutory exceptions are met. Thatsaphone v. Weber, 137 F.3d 1041, 1045 (8th Cir. 1998); 28 U.S.C. § 2254(e). A federal habeas court must “more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked even ‘fair support' in the record.” Marshall v. Lonberger, 459 U.S. 422, 432 (1983).
B. Mr. McPeek's Claims
1. Cruel and Unusual Punishment
Mr. McPeek first argues that his 25-year sentence violates the Eighth Amendment's proscription against cruel and unusual punishment. Docket No. 1 at p. 5; see Jones v. Mississippi, 593 U.S.___, ____, 141 S.Ct. 1307, 1314 (2021) (“[T]he Fourteenth Amendment incorporates the Cruel and Unusual Punishments Clause against the States.”). He states the sentence “is excessive and disproportional to the crime itself as well as in comparison to other similar cases.” Docket No. 1 at p. 5. The State argues that Mr. McPeek lacks standing to argue the issue, that the ground is improperly exhausted and procedurally defaulted, and that in any event, Mr. McPeek fails on the merits. Docket No. 9 at p. 3.
a. Standing
Article III standing, which the State disavows here, is jurisdictional, and therefore “must be assessed before reaching the merits.” Byrd v. United States, 584 U.S. 395, 410-11 (2018) (citation omitted); Docket No. 9 at pp. 38-39.
For a petitioner to have Article III standing, the petitioner must show an “actual or imminent” injury-in-fact, “a causal connection between the injury and the conduct complained of,” and an ability to “be redressed by a favorable decision” of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and internal quotation marks omitted).
The State argues Mr. McPeek cannot show an “injury in fact that is fairly traceable to the State,” because he subjected himself to his 25 year sentence when he entered into the Part II information plea agreement. Docket No. 9 at pp. 39-40. In support of this theory, the State directs the court's attention to United States v. Lovell. Id. at p. 39 (citing 811 F.3d 1061 (8th Cir. 2016)). Lovell instructs that “a defendant who explicitly and voluntarily exposes himself to a specific sentence in a plea agreement may not challenge that punishment on appeal.” Id. at 1063 (citation omitted) (alterations deleted).
But the line of cases from which Lovell's reasoning evolved relied not on standing doctrine, but rather, waiver. See United States v. Fritsch, 891 F.2d 667, 668 (8th Cir. 1989); United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995) (citing Fritsch, 891 F.2d at 668; United States v. Durham, 963 F.2d 185, 187 (8th Cir. 1992) (“Durham waived any objection to the twenty-five year sentence by agreeing that it was the minimum sentence mandated by the statutes, and by accepting the benefit of the plea agreement.”)); Lovell, 811 F.3d at 1063 (quoting Nguyen, 46 F.3d at 783).
Waiver is an affirmative defense; its prospect does not vitiate standing. FED. R. CIV. P. 8(c)(1). Such is evinced by the Lovell decision itself, which proceeded to the merits of an Eighth Amendment claim despite Mr. Lovell having “stipulated to a 180 month sentence in his plea agreement.” 811 F.3d at 1063. After all, the defense of waiver can be overcome, for example, by showing that a plea was involuntary. Cf. United States v. Kling, 516 F.3d 702, 704-05 (8th Cir. 2008). By following the State's reasoning, any time a defendant enters a plea agreement, courts lose jurisdiction to consider a collateral attack on what was agreed to. Cf. Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). This is obviously not the law. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (The outcome of a plea hearing “constitute[s] a formidable barrier in any subsequent collateral proceedings,” but that barrier “is not invariably insurmountable.”). Mr. McPeek has standing to litigate his claim.
b. Whether Mr. McPeek's Claim is Exhausted and Procedurally Defaulted
i. Exhaustion
With rare exception not applicable here, the court is prohibited from granting an application for a writ of habeas corpus where “the applicant has [not] exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2244(b)(1)(A).
“A claim is considered exhausted when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim.” Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993). This “full and fair opportunity” consists of “invoking one complete round of the State's established appellate review process.@ O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This type of exhaustion is known as “proper exhaustion.” See, e.g., Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 2001).
A claim will also be considered exhausted when there are no “currently available non-futile state remedies.” Smittie v. Lockhart, 843 F.2d 295, 296-97 (8th Cir. 1988). An example of this “technical exhaustion” is when a petitioner, under an “independent and adequate state procedural rule,” is barred from review of his claim. Coleman v. Thompson, 501 U.S. 722, 726-32 (1991).
Here, Mr. McPeek did not bring his Eighth Amendment claim on appeal. See Appeal Record at p. 31 (“McPeek is not making a constitutional argument regarding his sentence.”). So, Mr. McPeek did not provide the South Dakota Supreme Court “a full and fair opportunity” to resolve the claim. O'Sullivan, 526 U.S. at 845. He, therefore, did not properly exhaust his claim. Id. But as a consequence of not bringing the claim on appeal, Mr. McPeek became barred, under South Dakota law, from raising it in collateral proceedings. Legrand v. Weber, 855 N.W.2d 121, 129 (S.D. 2014) (citation omitted). And so, for purposes of determining exhaustion, Mr. McPeek's claim is technically exhausted. Coleman, 501 U.S. at 722.
ii. Procedural Default
In Coleman v. Thompson, the Supreme Court recognized that left unchecked, technical exhaustion could provide petitioners a backdoor into federal courts, bypassing proper exhaustion and the considerations of comity the requirement is meant to enforce. 501 U.S. at 731-32. And so, the Court made explicit:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Id. at 750.
In order for procedural default to attach in cases where “the last state court rendering a judgment” considered the claim at issue, the judgment must have cited, “clearly and expressly,” an adequate and independent state procedural bar as its reason for dismissal of the claim. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985); Harris v. Reed, 489 U.S. 255, 260-63 (1989). For claims never considered at the state appellate level, “[a] petitioner may not raise in federal court an error that he failed to raise properly in state court in a challenge to the judgment reflecting the error.” Magwood v. Patterson, 561 U.S. 320, 340 (2010); see also O'Sullivan, 526 U.S. at 848 (habeas claims not presented to a state court of last resort procedurally defaulted).
As discussed in Section B(1)(b)(i), supra, Mr. McPeek's Eighth Amendment claim is technically, rather than properly, exhausted. The court is aware that in Mr. McPeek's state habeas proceedings, both Mr. McPeek's habeas counsel and the circuit court inaccurately stated that the Eighth Amendment issue was considered at the appellate level. Habeas Record at pp. 44, 349. As such, the habeas court found Mr. McPeek procedurally barred “for the wrong reason.” Id. at pp. 352-53; Docket No. 9 at p. 49 (State acknowledging error in brief). Notwithstanding that error, the circuit court quoted law recognizing that issues “actually litigated” on appeal and issues “that could have been raised and decided” both encounter dismissal by a South Dakota habeas court on res judicata grounds. Habeas Record at p. 353 (quoting Legrand, 855 N.W.2d at 129).
It is within this court's powers to consider procedural default for the correct reason, sua sponte. King v. Kemna, 266 F.3d 816, 821-22 (8th Cir. 2001) (en banc); see also Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004) (“For the federal court to enforce a state procedural bar, either the state court must have declined to reach the issue for procedural reasons or it is clear that the state court would hold the claim procedurally barred.").
Here, it is clear that if the habeas court had gotten the procedural history right, the outcome would have been the same. Eighth Amendment issues are among those that can be raised and decided at the appellate level in South Dakota. See, e.g., State v. Brende, 835 N.W.2d 131, 145 (S.D. 2013).
Mr. McPeek did not do so. Mr. McPeek's claim is procedurally defaulted unless he “demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Mr. McPeek requests that he be excused from procedural default due to his status as a pro se petitioner, his lack of training in the law, and his “limited resources or help.” Docket No. 12 at p. 20. But this is not the legal standard. McKinnon v. Lockhart, 921 F.2d 830, 832 n.5 (8th Cir. 1990).
And in any event, Mr. McPeek was represented by counsel when his arguments on appeal were briefed. Appeal Record at pp. 31, 42. Mr. McPeek's status as pro se had no bearing on the reason for his default.
To demonstrate cause for default, a petitioner must “demonstrate that his failure to comply with the state procedural rule was attributable to ‘some objective factor external to the defense.' ” Dansby v. Payne, 47 F.4th 647, 659 (8th Cir. 2022). Mr. McPeek makes no such argument.
To show a fundamental miscarriage of justice, Mr. McPeek must “present new evidence that affirmatively demonstrates that he is innocent of the crime for which he was convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). Evidence is new “only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.” Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997). The new evidence must be reliable. Schlup v. Delo, 513 U.S. 298, 324 (1995). Examples are “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Id. “Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Id. The court has scoured the state habeas record and Mr. McPeek's filings and found no evidence that qualifies. See generally Docket Nos. 1, 1-1, 12, 12-1, 13, 14 & 15; Habeas Record.
Mr. McPeek's Eighth Amendment claim is procedurally defaulted. This court's review on the merits is barred because Mr. McPeek has failed to demonstrate cause and prejudice or a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
2/3. Ineffective Assistance of Counsel and Fourth Amendment Claims
For ground two, Mr. McPeek argues that his counsel was ineffective because after the trial court denied his suppression motion, counsel did not “pursue[ ] this incorrect conclusion of the law and s[eek] to have the evidence of the encounter that came after the unlawful detention suppressed.” Docket No. 1 at p. 7. The State argues that this claim is “vague, conclusory, and overly generic.” Docket No. 9 at p. 37. The State further argues that the claim is improperly exhausted and procedurally defaulted, and, in any event, the argument fails on either prong of the Strickland test. Id. at pp. 50-51, 68-71.
Strickland v. Washington, 466 U.S. 668 (1984).
For ground three, Mr. McPeek argues that he “was denied a full and fair opportunity to litigate his Fourth Amendment claims or fully considered in the state courts.” Docket No. 1 at p. 8. The State argues the “claim is vague, conclusory, and overly generic,” that exhaustion “might be properly exhausted, but that exhaustion is unclear,” and in any event, Mr. McPeek fails on the merits. Docket No. 9 at pp. 36-37, 51-54, 64-67.
The court cannot consider either of these claims because Mr. McPeek has no standing to bring them. Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam).
The Fourth Amendment instructs that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. Contemplated among such violations are an unreasonable intrusion into a car's interior, New York v. Class, 475 U.S. 106, 114-15 (1986), and a traffic stop conducted without “a reasonable, articulable suspicion that criminal activity has occurred or is occurring.” United States v. Forjan, 66 F.4th 739, 746 (8th Cir. 2023) (citation omitted).
To “effectuat[e] the rights secured by the Fourth Amendment,” the Court created “the exclusionary rule,” a prophylactic sanction that requires suppression at trial of evidence “secured through an illegal search or seizure conducted by federal authorities.” Stone v. Powell, 428 U.S. 465, 482-83 (1976); Hemphill v. New York, 595 U.S. 140, 154 (2022). In Mapp v. Ohio, the exclusionary rule was made applicable to the states. Stone, 428 U.S. at 483 (citing generally 367 U.S. 643 (1961)).
“The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of testimony concerning knowledge acquired during an unlawful search.” Murray v. United States, 487 U.S. 533, 536 (1988) (citations omitted). The rule “reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or fruit of the poisonous tree.” Segura v. United States, 468 U.S. 796, 804 (1984) (citations and internal quotation marks omitted).
“Standing to invoke the exclusionary rule has been found to exist only when the Government attempts to use illegally obtained evidence to incriminate the victim of the illegal search.” Stone, 428 U.S. at 488. This is why Mr. McPeek's claims cannot stand. Even assuming without deciding that Mr. McPeek's seizure was illegal, and that Officer Young's opening of the truck door constituted an illegal search, the State never obtained any tangible evidence or knowledge stemming from those occurrences. Correspondingly, the State did not seek to “use illegally obtained evidence to incriminate” Mr. McPeek. Id. The State incriminated Mr. McPeek using the testimony of Officer Young and his treatment provider, law enforcement personnel, and eyewitnesses, footage from the outdoor surveillance video from Frank's Trading Post, and photos of Officer Young's injured body. Criminal Record at p. 121; see generally id. at pp. 598-894. As the trial court explained at the motion hearing, there was “nothing to be suppressed.” Id. at p. 551. The exclusionary rule simply has no application under Mr. McPeek's circumstances.
Mr. McPeek proceeds on a belief that any evidence arising after Officer Young's approach, from any source, and of any act, is excludable. Cf. Docket No. 12 at p. 35. This is a mistake of law. Only evidence that results directly or indirectly from the (alleged) illegal conduct is excludable. Segura, 468 U.S. at 804. So, whether a surveillance camera or a bystander in the parking lot- these sources are not “the fruit” of Officer Young's acts. They, therefore, are not excludable under the Fourth Amendment. And, importantly, neither is evidence of criminal activity initiated after an illegal search or seizure. United States v. Hunt, 372 F.3d 1010, 1012 (8th Cir. 2004) (“When a defendant commits a new and distinct crime during an unlawful detention, the Fourth Amendment's exclusionary rule does not bar evidence of the new crime.”). Mr. McPeek's assault on Officer Young succeeded Officer Young's approach and entrance to Mr. Young's vehicle. Evidence of the assault, in any form, is not protected by the exclusionary rule.
Because the State did not “attempt to use illegally obtained evidence to incriminate” Mr. McPeek, he has no standing to bring a Fourth Amendment claim. Stone, 428 U.S. at 488. Ground Two must be dismissed for want of subject matter jurisdiction.
A fortiori, there can be no injury in fact as to the inadequacy of Attorney Youngberg's representation on the Fourth Amendment matter, because Mr. McPeek never had standing to bring the argument to begin with. “If a plaintiff has not suffered an injury, there is no standing.” Tarsney v. O'Keefe, 225 F.3d 929, 934 (8th Cir. 2000) (citation omitted). Ground Three must be dismissed for want of subject matter jurisdiction.
Even assuming an injury, insofar as Mr. McPeek seeks a remedy “for a new state trial with evidence suppressed for the [F]ourth [A]mendment violation,” Docket No. 1 at p. 15, the court cannot provide redress because none of the evidence submitted at trial was the product of a constitutional violation.
4. Change of Venue
For his final argument, Mr. McPeek argues that he “was not given a nonprejudiced and impartial trial” due to the trial court's denial of his motion for change of venue. Docket No. 1 at p. 10. The State counters that the claim is “vague and conclusory,” that part of the claim is procedurally defaulted, and that, on the merits, Mr. McPeek is not entitled to relief. Docket No. 9 at pp. 38, 53-54, 71-73.
To the extent Mr. McPeek improperly raises new arguments elsewhere on the docket, the court cannot consider them. Bracken v. Dormire, 247 F.3d 699, 702 (8th Cir. 2001).
The court interprets Mr. McPeek's claim as two distinct arguments for change of venue: (1) Officer Young is friends with the State's Attorney and the trial court judge; and (2) because Officer Young is a prominent member of the Bon Homme County community, a fair trial was not possible there. Docket No. 1 at p. 10.
a. Whether the First Claim is Procedurally Defaulted
The argument that change of venue was necessary because of the friendship of Officer Young, the State's Attorney, and the trial court judge was not raised in Mr. McPeek's motion for change of venue, nor in his affidavit in support of change of venue. Criminal Record at pp. 40-41. It was not argued at the motion hearing. Id. at p. 552. It was not argued on appeal. Appeal Record at pp. 38-40. Nor did Mr. McPeek raise it in Part B of his Korth brief. See generally Habeas Record at pp. 153-66.
Mr. McPeek's allegations of ineffective assistance of counsel for not raising a similar argument do not count as raising, independently, the change of venue argument. See Habeas Record at p. 153. The habeas court was not afforded the opportunity to declare the change of venue argument procedurally barred on state res judicata grounds.
Because Mr. McPeek did not present this claim to the South Dakota Supreme Court, it is procedurally defaulted and the court may not consider it absent a showing of cause and prejudice or a fundamental miscarriage of justice. O'Sullivan, 526 U.S. at 848; Coleman, 501 U.S. at 750. As the court explained in Section B(1)(b)(ii), supra, Mr. McPeek has failed to make these showings. Accordingly, Mr. McPeek is ineligible for relief on this part of his claim for habeas relief based on denial of his change of venue motion.
b. Whether the Court Should Have Permitted a Change of Venue Due to Officer Young's Status as a Prominent Citizen
Mr. McPeek argues change of venue is appropriate when a victim is a prominent member of the community. Docket No. 1 at p. 10. The State counters that this application of change of venue law is absent from Supreme Court change of venue jurisprudence, thus rendering it an ineffective vehicle for collateral attack. Docket No. 9 at pp. 71-72. The State is correct.
As stated in Section A(2), supra, habeas relief from a state court decision is only available when the decision is contrary to “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent. ” Williams v. Taylor, 529 U.S. 362, 405-06, (2000). Axiomatically, a standard unknown to federal law cannot serve to undo a state court decision. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
Here, Mr. McPeek provides the court with no Supreme Court case administering a prominent citizen test for change of venue, and neither the court nor the State can locate one. Mr. McPeek cites five factors for consideration in the change of venue context, among them the “[p]rominence of the victim,” Docket No. 12 at p. 37, but those factors arise from California state jurisprudence. See, e.g., People v. Famalaro, 253 P.3d 1185, 1201 (Cal. 2011). Nothing about federal due process requires South Dakota to adopt California law.
Under Supreme Court precedent, courts considering change of venue must look to the “probability of unfairness” under a totality of the circumstances approach. Estes v. Texas, 381 U.S. 532, 543 (1965); Murphy v. Florida, 421 U.S. 794, 799 (1975). Change of venue is appropriate when doing so is the only way “to assure the kind of impartial jury that is guaranteed by the Fourteenth Amendment.” Groppi v. Wisconsin, 400 U.S. 505, 510 (1971).
In Murphy v. Florida, despite the “circus-like” media frenzy surrounding the trial of notorious jewel thief “Murph the Surf,” the Court found no error in the denial of change of venue. 421 U.S. 794, 795-96, 800-03 (1975). There, the Court's affirmation was informed by Murphy's voir dire proceedings, where it found no “hostility to [Murphy] by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” Id. at 800. Some jurors had only vague prior knowledge of Mr. Murphy's charges, and at least one “had never heard of petitioner until he arrived in the room.” Id. at 801-02.
As to Mr. McPeek's trial, there can be no doubt that Officer Young's status as an officer in Tyndall had an effect on voir dire. A substantial number of venirepersons were familiar with the matter and had preconceived notions about Mr. McPeek's guilt. But the transcript evinces that Attorney Horn successfully screened those men and women out. See Criminal Record at pp. 968-85. The transcript reveals that those jurypersons selected claimed they could be impartial, they “were good” (no issues with being impartial), and several who were unfamiliar with the matter, the parties, or both. Id.
Mr. McPeek places special emphasis on the percentage of venirepersons removed for cause. See, e.g., Docket No. 12 at p. 12. And indeed, in Irvin v. Dowd, the fact that 62% of venirepersons were excused for cause was a factor the Court used in finding change of venue appropriate. Murphy, 421 U.S. at 802-03; see Irvin v. Dowd, 366 U.S. 717, 727 (1961). But other weighty factors contributed to the Irvin court's impression of a “pattern of deep and bitter prejudice shown to be throughout the community.” Irvin, 366 U.S. at 727 (internal quotation marks omitted). For example, 8 of the 12 Irvin jurors revealed, during voir dire, that they had a preconception of guilt. Id. This fact stands in stark contrast to Mr. McPeek's circumstances, where every venireperson with a preconceived notion of Mr. McPeek's guilt was excused for cause, and only those who asserted impartiality, including those unaware of the matter entirely, remained. And for Mr. McPeek, the percentage of venirepersons excused for cause was less-approximately 40%.
Mr. McPeek appears to count those excused for funerals in his tally. The court does not.
Under the totality of the circumstances, it was entirely reasonable for the state court to conclude that an impartial trial could be had in Bon Homme County. Nothing about the state court's decision to deny change of venue can be said to be contrary to clearly established Federal law, as determined by the Supreme Court of the United States. And because that contradiction would be the only source of relief, Mr. McPeek's change of venue claim cannot succeed.
CONCLUSION
Based on the facts, law, and analysis discussed above, this magistrate judge respectfully recommends granting respondents' motion for judgment on the pleadings and dismissing Mr. McPeek's habeas petition with prejudice. [Docket No. 8].
NOTICE TO PARTIES
The parties have 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. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the district court. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665, 667 & n.3 (8th Cir. 1986).