Banzi v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEFED BANZI,
Petitioner,
vs.
BRENT FLUKE, RICHARD A
SOMMERS, JUDGE; CHRISTY SERR,
ATTORNEY - D.A.; AND 	ATTORNEY
GENERAL FOR THE STATE OF
SOUTH DAKOTA,
sRespondent.
4:21-CV-04207-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is pending before the court pursuant to the pro se petition
pursuant to 28 U.S.C. § 2254 of Defed Banzi, a person incarcerated pursuant
to a judgment of a South Dakota state court. 	See Docket No. 1. 	After
screening Mr. Banzi’s petition, the court issued an order to show cause why his
petition should not be dismissed on grounds of untimeliness and failure to
exhaust his claims in state court. 	See Docket No. 7.
Now pending is a motion to dismiss Mr. Banzi’s petition without holding
an evidentiary hearing by respondent. 	See Docket No. 11. 	Mr. Banzi has not
responded to the motion to dismiss and the time for doing so has now passed.
This matter has been referred to this magistrate judge for a recommended
disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, district court judge.
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FACTS
Mr. Banzi was charged with aggravated assault domestic by choking and
two counts of simple assault in state court on March 18, 2019. 	See Docket No.
12-1. 	Counsel was appointed to represent Mr. Banzi and on August 26, 2019,
he entered into a plea agreement. 	Docket No. 12-2.
Under the terms of that agreement, Mr. Banzi agreed to enter an “Alford”
plea to aggravated assault. 	Id. at p. 2. 	Upon the state court’s acceptance of
that plea, the prosecution agreed to drop the other charges. 	Id. 	The agreement
stated that Mr. Banzi was maintaining his innocence, but that he would not
object to the factual basis provided by the state in support of the plea. 	Id.
No transcript of the change of plea hearing or the sentencing hearing is
present in the state court files. 	However, the judgment of conviction recites the
fact that the court found a factual basis for Mr. Banzi’s plea. 	Docket No. 12-3
at p. 1. 	On October 9, 	2019, Mr. Banzi was sentenced to 15 years’
incarceration with five of those years suspended. 	Id.
Mr. Banzi neither filed a direct appeal of his conviction and sentence nor
did he file a habeas petition or other post-conviction pleading in state court.
He filed his federal habeas petition with this court on November 29, 2021.
Docket No. 1. 	Respondent now moves to dismiss Mr. Banzi’s petition on the
grounds that it is time-barred and that he has procedurally defaulted his
claims. 	Docket No. 11. 	As indicated previously, Mr. Banzi did not respond to
this motion and the time for doing so expired some weeks ago.
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DISCUSSION
A. 	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). 	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
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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. Banzi’s Claims are Untimely
Petitions pursuant to § 2254 are subject to a one-year statute of
limitations which begins to run as soon as the underlying state court
conviction becomes final. 	See 28 U.S.C. § 2244(d)(A). 	A judgment or state
conviction is final, for purposes of commencing the statute of limitation period,
at “(1) either 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).
The limitations period for § 2254 petitions is subject to statutory tolling.
See 28 U.S.C. § 2244(d)(2). 	This one-year statute of limitation period is tolled,
or 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.
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
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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.
State collateral or post-conviction proceedings “are ‘pending’ for the
period between the trial court’s denial of the [post-conviction relief] and the
timely filing of an appeal from it.” 	Maghee v. Ault, 410 F.3d 473, 475 (8th Cir.
2005) (citing Peterson v. Gammon, 200 F.3d 1202, 1203 (8th Cir. 2000)); see
also Johnson v. Kemna, 451 F.3d 938, 939 (8th Cir. 2006) (an application for
state post-conviction review is pending until a mandate is issued).
However, state proceedings are not pending for the ninety-day period
“following the final denial of state post-conviction relief, the period during
which an unsuccessful state court petitioner may seek a writ of certiorari from
the United States Supreme Court.” 	Jihad, 267 F.3d at 805. 	Additionally,
“[s]tate proceedings are not pending during the time between the end of direct
review and the date an application for state [post-conviction relief] is filed.”
Maghee, 410 F.3d at 475 (citing Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir.
2001)). 	In short, the one-year statute of limitations begins to run after the
state conviction is final, is tolled while state habeas proceedings are pending,
and then begins running again when state habeas proceedings become final.
Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003).
Here, Mr. Banzi had 30 days in which to file a notice of appeal of his
conviction, so his conviction became final 30 days after his judgment of
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conviction was filed—on November 8, 2019. 	See SDCL § 23A-32-15. 	He never
filed a state habeas petition, so the statutory tolling available under AEDPA did
not apply in his case. 	Since Mr. Banzi’s AEDPA limitations period began to run
on November 8, 2019, and was never statutorily tolled, his AEDPA limitations
period expired on November 8, 2020. 	It follows, then, that his federal petition
is untimely because he did not file it with this court until November 29, 2021.
The one-year AEDPA statute of limitations is not a jurisdictional bar.
Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003). 	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); 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. 	Holland,
560 U.S. 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).
Here, it was Mr. Banzi’s burden to demonstrate that grounds exist for
equitable tolling of the AEDPA limitations period in his case. 	Holland, 560 U.S.
at 649. 	By failing altogether to respond to the respondent’s motion to dismiss,
he fails to carry that burden. 	The court recommends dismissing Mr. Banzi’s
petition as untimely.
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C. 	Mr. Banzi’s Claims are Procedurally Defaulted
AEDPA requires that state prisoners first exhaust each claim in state
court before bringing that claim in a federal habeas petition. 	28 U.S.C.
§ 2254(b) & (c). 	Exhaustion requires that a state prisoner present the exact
same claim in state court that is being presented in federal court, and that the
state prisoner exhaust each step of the state process from lowest to highest
state court. 	O’Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999); Picard v.
Connor, 404 U.S. 270, 276 (1971); Ashker v. Leapley, 5 F.3d 1178, 1179 (8th
Cir. 1993); Satter v. Leapley, 977 F.2d 1259, 1262 (8th Cir. 1992);
If a state prisoner fails altogether to present a claim in state court, or if
he fails to present that claim at every court level available to him under the
state court system, he has failed to exhaust that claim. Ashker, 5 F.3d at 1179;
Smittie v. Lockhart, 843 F.2d 295, 297 (8th Cir. 1988). 	Here, it is evident
Mr. Banzi has failed to exhaust any claim in his federal petition.
Firstly, he never filed a direct appeal, so no claims were exhausted
through that avenue. 	Secondly, he never filed a habeas petition or other
collateral attack on his conviction in state court, so no exhaustion was
achieved through that avenue either. 	The court concludes Mr. Banzi’s petition
is completely unexhausted. 	O’Sullivan, 526 U.S. at 845 (failure to pursue a
claim through a state court’s established appellate review process results in an
unexhausted claim).
When a state prisoner has failed to exhaust a claim in state court, the
federal court must ask whether there is any available avenue for him to return
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to state court to exhaust that claim. 	Carmichael v. White, 163 F.3d 1044,
1045 (8th Cir. 1998); Smittie, 843 F.2d at 297. 	Here, there is not. 	Mr. Banzi’s
conviction became final November 8, 2019, 30 days after he was sentenced.
SDCL § 23A-32-15. 	After that, he had no avenue to appeal. 	He then had until
November 8, 2021--two years after his conviction became final--in which to file
a state habeas petition. 	SDCL § 21-27-3.3. 	He did not do that either. 	The
time for doing both has passed.
When a state prisoner has failed to exhaust a claim and there is no
avenue for him to do so any longer, the claim is procedurally defaulted.
Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n.1 (1991). 	When a claim is
procedurally defaulted at the state level, the federal court may not consider the
claim on its merits unless the state prisoner can (1) demonstrate some cause
external to himself prevented him from exhausting and he was prejudiced
thereby, or (2) a fundamental miscarriage of justice has occurred. 	Id. at 750;
Maynard v. Lockhart, 981 F.2d 981, 984 (8th Cir. 1992). 	To date, the Supreme
Court has recognized only a claim of actual innocence as constituting a
fundamental miscarriage of justice. 	Schlup v. Delo, 513 U.S. 298, 321 (1995).1
Mr. Banzi, by failing to respond in any way to respondents’ motion to dismiss,
has failed to carry his burden to demonstrate cause and prejudice or a
fundamental miscarriage of justice.
1 A successful claim of actual innocence requires the petitioner to support his
allegations with new, reliable evidence. 	Weeks v. Bowersox, 119 F.3d 1342,
1351 (8th Cir. 1997).
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Because all of the claims in Mr. Banzi’ federal petition are unexhausted
and procedurally defaulted, and because he has failed to demonstrate cause
and prejudice or actual innocence to excuse his default, this court recommends
granting respondents’ motion to dismiss his petition with prejudice. 	Armstrong
v. Iowa, 418 F.3d 924, 925, 927 (8th Cir. 2005); Ogle v. Johnson, 488 F.3d
1364, 1370 (11th Cir. 2007) (holding dismissal on the basis of procedural
default is a dismissal with prejudice).
CONCLUSION
Based on the foregoing facts, law and analysis, this magistrate judge
respectfully recommends granting respondent’s motion to dismiss [Docket No.
11] and dismissing Mr. Banzi’s § 2254 petition with prejudice.
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 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 7th day of February, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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