Newman v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES WESTLEY NEWMAN,
Petitioner,
vs.
BRENT FLUKE, WARDEN; GORDON
SEANSON, SOUTH DAKOTA BOARD
OF PARDONS AND PAROLES—NON-
COMPLIANCE PANEL; and MYRON
RAU—SOUTH DAKOTA BOARD OF
PARDONS AND PAROLES—NON-
COMPLIANCE PANEL,
Respondents.
4:22-CV-04158-KES
ORDER TO SHOW CAUSE AND
FOR SERVICE
Petitioner, Charles Westley Newman, a person incarcerated pursuant to a
state court judgment, has filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. ' 2244 [sic]. Based upon initial review of that petition, it appears
that Mr. Newman’s petition may be unexhausted or procedurally defaulted, in
whole or in part.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), requires that
before a federal court may entertain a state petitioner’s habeas claims, those
claims must first be presented in the proper way to the proper state tribunal for
consideration and then all avenues available for appeal under state law must be
exhausted. 28 U.S.C. § 2254(b) & (c). If a state petitioner fails to present his
claims to the proper tribunal, or fails to present his claims up the full ladder of
available appellate review, his claim is considered unexhausted and, in general,
may not be heard on the merits by a federal habeas court. 28 U.S.C. § 2254(b);
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O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). If it is still possible for a state
petitioner to return to state tribunals and complete the required exhaustion, the
federal court should dismiss the federal petition without prejudice to allow
exhaustion to be completed. Rose v. Lundy, 455 U.S. 509, 522 (1982).
However, when a petitioner has no nonfutile avenues left in state court to
complete the exhaustion of his claims before state tribunals, then his claim is
procedurally defaulted. 	Smittie v. Lockhart, 843 F.2d 295, 297 (8th Cir. 1988).
In such a case, the federal court must dismiss the federal habeas claims with
prejudice unless the state petitioner can demonstrate cause for the default and
actual prejudice or show convincing evidence of actual innocence based on new
evidence that was not previously available or could not have been discovered
with the exercise of due diligence. 	Schlup v. Delo, 513 U.S. 298, 315, 324
(1995) (standard for demonstrating actual innocence); Carmichael v. White,
163 F.3d 1044, 1045 (8th Cir. 1998) (dismissal for procedural default is with
prejudice); Maynard v. Lockhart, 981 F.2d 981, 984 (8th Cir. 1992) (state
petitioner must show cause and prejudice in order to allow a federal habeas
court to reach the merits of a procedurally defaulted claim).
Mr. Newman makes clear in his petition that he is not challenging his
original sentence, but rather he is collaterally attacking the decision by the
South Dakota Board of Pardons and Paroles (“the Board”)to revoke his parole
and to impose the previously-suspended portion of his sentence(s). 	See Docket
No. 1 at p. 1. 	The manner for pursuing an appeal of such decisions set forth
by state law is to file an administrative appeal within the Board and, if the
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internal agency appeal is unsuccessful, the complainant must make an appeal
to the state circuit court pursuant to SDCL ch. 1-26. 	See SDCL § 1-26-37;
Austad v. South Dakota Board of Pardons and Paroles, 719 N.W.2d 760, 764
(S.D. 2006).
Nothing in Mr. Newman’s petition makes reference to having pursued an
administrative appeal of the Board’s decision or to having completed an appeal
to circuit court of the Board’s decision pursuant to SDCL ch. 1-26.
Mr. Newman does reference filing a state habeas petition. 	Docket No. 1 at p. 2.
But a petition for a writ of habeas corpus filed in state circuit court does not
satisfy the exhaustion requirement because that is not the method of appeal
prescribed by state law.
Because it appears that Mr. Newman’s claims may be unexhausted and
possibly procedurally defaulted, it is hereby
ORDERED that the Clerk of Court is directed to serve upon the respondent
and the Attorney General of the State of South Dakota a copy of the petition and
this Order, as well as a copy of Mr. Newman’s complaint in Newman v. Gilchrist,
4:22-CV-04155-KES, Docket No. 1, to which Mr. Newman makes extensive
reference in his habeas petition; it is further
ORDERED that both parties shall show cause no later than December
15, 2022, why Mr. Newman’s petition should not be dismissed without
prejudice because his claims have not been properly exhausted, or why his
petition should not be dismissed with prejudice because his claims are
procedurally defaulted. 	It is also
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ORDERED that respondents shall file with this court copies all pertinent
state court records, including any pertinent transcripts.
DATED November 15, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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