Willingham v. 7th Circuit Court of Pennington County et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DONALD WILLINGHAM,
Petitioner,
vs.
SEVENTH JUDICIAL CIRCUIT COURT
OF PENNINGTON COUNTY and
ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA,
Respondents.
5:21-CV-05001-KES
ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DENYING PETITION FOR
CERTIFICATE OF APPEALABILITY
Petitioner, Donald Willingham, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. Docket 1. In his petition, Willingham seeks
habeas relief. Id. The petition was assigned to United States Magistrate Judge
Daneta Wollmann under 28 U.S.C. § 636(b)(1)(B), and this court’s April 1, 2018
standing order. On January 12, 2022, respondents moved to dismiss
Willingham’s petition. Docket 8.
On May 17, 2022, Magistrate Judge Wollmann filed a report and
recommendation that recommended dismissal with prejudice of all of
Willingham’s habeas claims because Willingham failed to exhaust his state
court remedies and those claims are now procedurally defaulted. Docket 10.
Additionally, the report and recommendation recommends that the court find
that federal habeas review is barred because Willingham has not shown cause
and actual prejudice. Id.
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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. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). 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); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Willingham did not file objections to Magistrate Judge Wollmann’s report
and recommendation. After de novo review of the record, the court adopts the
report and recommendation in full and dismisses Willingham’s petition.
“[A] state prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.” Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). “Before an appeal
may be entertained, a prisoner who was denied habeas relief in the district
court must first seek and obtain a [certificate of appealability] from a circuit
justice or judge.” Id. at 335–36. A certificate may be issued “only if the
applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(2). A “substantial showing” is one that demonstrates
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
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The court finds that Willingham fails to make a substantial showing that
his constitutional rights were denied. Consequently, a certificate of
appealability is denied as to all claims.
Thus, it is ORDERED
1. 	Magistrate Judge Wollmann’s report and recommendation (Docket
10) is adopted in full.
2. 	Respondents’ motion to dismiss (Docket 8) is granted, and
Willingham’s petition is dismissed with prejudice.
3. 	A certificate of appealability is denied.
Dated June 3, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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