Kiir v. South Dakota State Penitentiary et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DIW BOL KIIR,
Petitioner,
vs.
SOUTH DAKOTA STATE
PENITENTIARY, THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA,
Respondents.
4:21-CV-04009-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND GRANTING
MOTION TO DISMISS
Petitioner, Diw Bol Kiir, filed a pro se petition for writ of habeas corpus
28 U.S.C. § 2254. Docket 1. The matter was referred to Magistrate Judge
Veronica L. Duffy for a report and recommendation, and she recommended
granting respondents’ motion to dismiss the petition (Docket 10), denying Kiir’s
motion to quash (Docket 15) and dismissing Kiir’s petition with prejudice.
Docket 19. Kiir timely filed objections to the report and recommendation.
Docket 20. For the following reasons, the court adopts Magistrate Judge
Duffy’s report as supplemented herein.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. Under 28 U.S.C. § 636(b)(1), the court reviews de novo any
objections to the magistrate judge’s recommendations with respect to
dispositive matters that are timely made and specific. See Fed. R. Civ. P.
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72(b)(3) (“The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.”). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
As a supplement to the fact section of the report and recommendation,
this court adds the following:
After Kiir filed his initial petition for habeas relief in state court and after
counsel amended the petition for habeas relief, Kiir moved to withdraw all his
amended applications for habeas relief with the exception of the original
habeas petition. Kiir v. Young, Civ. 18-163 at 138 (2d Jud. Cir. 2018). Kiir then
filed an Amended Application for Writ of Habeas Corpus. Id. at 145.
First, Kiir objects to the report and recommendation’s failure to address
the second part of his Due Process claim in Ground One. Docket 20 at 1. Kiir
is correct that he also alleged in Ground One of his federal habeas petition that
the South Dakota Supreme Court violated his right to Due Process by changing
the basis of his conviction from mere possession of a firearm during the
commission of simple assault on law enforcement to an attempted use of a
firearm during the commission of simple assault on law enforcement. See
Docket 1 at 5. As support he cites Cola v. Rearden, 787 F.2d 681, 693 (1st Cir.
1986); United States v. Didonna, 866 F.3d 40, 50 (1st Cir. 2017); and Dunn v.
United States, 442 U.S. 100, 106-107 n. 4 (1979). Docket 20 at 1.
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While Kiir did raise this issue in his federal habeas petition, he did not
raise this issue for a decision on the merits before the South Dakota Supreme
Court on his direct appeal or in his state habeas petition. A petitioner must
present both the factual and legal premises of the federal claims to the state
court. Smittie v. Lockhart, 843 F.2d 295, 297 (8th Cir. 1988). The court has
reviewed Kiir’s briefs to the South Dakota Supreme Court on direct appeal, and
his initial petition for habeas relief, his amended petition for habeas relief, and
his final amended petition for habeas relief, all of which were filed in state
court. At no time did Kiir present a Fourteenth Amendment Due Process claim
to the state courts alleging that his right to Due Process was denied because
the South Dakota Supreme Court changed the basis of his conviction from
mere possession of a firearm during the commission of simple assault on law
enforcement to an attempted use of a firearm during the commission of simple
assault on law enforcement. Additionally, he did not cite the federal cases on
which he now relies. Thus, he failed to exhaust his claim before the state
courts. Furthermore, for the reasons stated in the report and recommendation,
it would be futile to send Kiir back to state court to try to present this part of
the Due Process claim, and he has failed to demonstrate cause and prejudice
to cure the procedural default. See Docket 19 at 16-17.
In case the Eighth Circuit disagrees with the court’s conclusion, the
court will address the merits of Kiir’s claim. Kiir primarily relies on Dunn v.
United States, 442 U.S. 100 (1979), and its progeny, as support for his claim.
In Dunn, the Supreme Court set aside Dunn’s conviction, stating:
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To uphold a conviction on a charge that was neither alleged in an
Indictment nor presented to a jury at trial offends the most basic
notions of due process. Few constitutional principles are more firmly
established than a defendant’s right to be heard on the specific
charges of which he is accused.
Id. at 106. Unlike in Dunn, here Count 7 of the indictment charged Kiir as
follows:
That the Defendant, DIW BOL KIIR, in Minnehaha County, State of
South Dakota, on or about the 15th day of May, 2015, then and there
did commit or attempts to commit the crime of SIMPLE ASSAULT
ON LAW 	ENFORCEMENT, 	when 	armed 	with 	a 	firearm, 	which
conduct is in violation of SDCL 22-14-12, contrary to the form of the
statute in such case made and provided and against the peace and
dignity of the State of South Dakota.
State v. Kiir, CR 15-3221 at 26 (2d Jud. Cir. 2015) (emphasis added). And in
the jury instructions, the jury was instructed as follows:
The elements of the crime of Committing or Attempting to Commit a
Felony with a Firearm, as charged in Court 7 of the Indictment, each
of which the state must prove beyond a reasonable double, are that
at the time and place alleged:
1. Diw Kiir committed or attempted to commit a felony, Simple
Assault on Law Enforcement.
2. Diw Kiir did so while armed with a firearm.
Id. at 107. This is not an instance where a defendant was convicted of a charge
that was neither alleged in the indictment nor presented to the jury. Instead,
the indictment put Kiir on notice that he was charged with committing or
attempting to commit the crime of simple assault on law enforcement and the
jury was instructed that they had to find beyond a reasonable double that Kiir
committed or attempted to commit simple assault on law enforcement. There is
no violation of Kiir’s Due Process rights here.
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Second, Kiir objects to the conclusion in the report and recommendation
that Kiir failed to exhaust the other part of his Due Process claim—namely
whether the evidence was sufficient on Count Seven. Docket 20 at 2. While Kiir
makes this objection, he does not identify for the court what part of the state
court record supports his conclusion that this issue was exhausted. See id.
The court has reviewed the entire state court record and agrees with the report
and recommendation’s conclusion that this issue was not exhausted. See
Docket 19 at 16. Additionally, Kiir was instructed and put on notice in the
report and recommendation that he should address the cause and prejudice
prongs of the procedural default analysis in his objections to the report and
recommendation. Id. at 17. Kiir failed to do so. As a result, the court finds that
both parts of his Due Process claim are procedurally defaulted.
In his third, fourth and fifth objections, Kiir objects to the portions of the
report and recommendation that find that Kiir has not met his burden to show
that his counsel provided ineffective assistance. Docket 20 at 2. The court has
reviewed de novo the report and recommendation and finds that it properly
sets forth and analyzes the law and the facts. It is adopted in full.
CONCLUSION
This court has reviewed Magistrate Judge Duffy’s report and
recommendation de novo and Kiir’s objections. This court adopts the report
and recommendation and dismisses Kiir’s petition for relief with prejudice.
Furthermore, based upon the reasons stated and under Fed. R. App.
P. 22(b), the court finds that petitioner has not made a substantial showing of
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the denial of a constitutional right. 28 U.S.C. ' 2253(c)(2). Thus, a certificate of
appealability is denied.
Thus, it is ORDERED
1. That the report and recommendation (Docket 19) is adopted in full as
supplemented herein. Kiir’s pro se petition for habeas corpus (Docket
1) is denied with prejudice.
2. Kiir’s objections to the report and recommendation (Docket 20) are
overruled.
3. Respondents’ motion to dismiss (Docket 10) is granted.
4. Kiir’s motion to quash respondents’ motion (Docket 15) is denied as
moot.
5. A certificate of appealability is denied.
Dated February 2, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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