Roedder v. Sullivan et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
JrlLtaU
SEP 2 6 2022
RICHARD KEITH ROEDDER, 1:22-CV-0I014-CBK
Petitioner
vs.
ORDER
DANIEL SULLIVAN, Warden, South
Dakota State Penitentiary, and MARK A.
VARGO, Attorney General ofthe State of
South Dakota,
Respondents.
Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging his convictions and sentences in South Dakota Circuit Court, Fifth
Judicial Circuit, Brown County, case # 06CRJI6-00I067,(hereinafter, CR 16-1067). I
have conducted an initial consideration ofthe motion, as required by Rule 4 ofthe Rules
Governing Section 2255 Proceedings for the United States District Courts. Many of the
state court records relevant to this case were electronically received in conjunction with a
prior habeas petition, 1:20-CV-0I021-CBK,involving convictions from South Dakota
Circuit Court, Fifth Judicial Circuit, Brown County, case # 06FI0-000I45AO,
(hereinafter, CR 10-145). In addition, I have reviewed the files of the cases filed in the
South Dakota Unified Judicial System's eCourts database (ecourts.sd.gov), and I take
judicial notice thereof.
Petitioner pleaded guilty in September 2017, to unauthorized possession of
methamphetamine occurring on August 24, 2016. He agreed to admit that he was
previously convicted oftwo felonies as defined in the habitual offender statutes. He was
sentenced on September 26, 2017, to 40 years custody, consecutive to a parole revocation
sentence he was serving in CR 10-145. Petitioner appealed his guilty plea and sentence
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in CR 16-1067 to the South Dakota Supreme Court, Supreme Court No. 28435. On
January 30, 2019, the South Dakota Supreme Court affirmed his conviction in CR 16-
1067 but reversed his 40-year sentence and remanded the case for resentencing. State v.
Roedder, 923 NW2d 537(SD 2019).
Petitioner was resentenced on August 20, 2019, to 40 years imprisonment, with
five years suspended, to run concurrent to the sentence he was serving for his parole
violation in CR 10-145. He appealed and on October 13, 2020,the South Dakota
Supreme Court affirmed, without opinion, the 40-year amended sentenee imposed.
Supreme Court No. 29103.
On November 16, 2020, petitioner filed a state court petition for a writ of habeas
corpus challenging the August 20, 2019,judgment entered in CR 16-1067. The case was
assigned case # 06CIV20-000474 (hereinafter CIV 20-474). While his state court habeas
petition was pending, petitioner filed a motion to modify his sentence in CR 16-1067.
Following an agreement between the petitioner and the prosecutor, petitioner was
resentenced in CR 16-1067 on August 10, 2022, to 21 years custody with credit for time
served since August 24, 2016, which sentence was ordered to run concurrent to the
sentence he was serving in CR 10-145. Petitioner entered into a stipulation that the
pending habeas case, CIV 20-474, which challenged his 40-year sentence, would be
dismissed on the merits with prejudice. The state court petition for a writ of habeas
corpus was dismissed August 11, 2022.
The Antiterrorism and Effective Death Penalty Aet of 1996("AEDPA")requires
petitioner to exhaust available state court remedies prior to seeking federal habeas corpus.
28 U.S.C.§ 2254(b)(1)(A), Sasserv. Hobbs. 735 F.3d 833, 842(8th Cir. 2013). "The
exhaustion requirement has as its purpose giving state courts 'the first opportunity to
review federal constitutional issues and to correct federal constitutional errors made by
the state's trial courts.'" Smittie v. Lockhart, 843 F.2d 295, 296-97(8th Cir. 1988).
Petitioner did not file a direct appeal ofthe sentence imposed in CR 16-1067 on August
10, 2022. Further, a state court habeas remedy is available to petitioner pursuant to
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SDCL 21-27-1. Petitioner did not file a state court habeas petition challenging the
imposition of his 21-year sentence.
It plainly appears from the petition as well as from the records ofthe South Dakota
Unified Judicial System, of which I take judicial notice, that petitioner has not exhausted
his state court remedies. Pursuant to 28 U.S.C.§ 2254(b), the petition must be dismissed
without prejudice to allow petitioner an opportunity to exhaust his state court remedies.
Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus is dismissed without
prejudice for failure to exhaust state court habeas remedies.
DATED this *^3 dayrrf September, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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