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

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,
Respondent.
5:21-CV-5001-KES
REPORT AND RECCOMENDATION
INTRODUCTION
This matter is before the court on Petitioner Donald Willingham’s pro se
petition for habeas relief pursuant to 28 U.S.C. § 2254. 	(Doc. 1). 	Mr.
Willingham filed the pending habeas petition on January 4, 2021. 	Id.
Respondent filed a Motion to Dismiss Mr. Willingham’s petition on January 12,
2022. 	(Doc. 8). 	The pending matter was referred to this Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B).
FACTS AND PROCEDURAL HISTORY
On October 24, 2015, Mr. Willingham was a passenger in a Suburban
which was pulled over as the result of a traffic stop conducted by South Dakota
Highway Patrol Trooper Zac Bader just east of Rapid City, South Dakota.
During the course of the stop, Trooper Bader located marijuana in the vehicle
and he attempted to place the vehicle occupants under arrest. 	Mr. Willingham
resisted arrest and beat Trooper Bader to the point where he was barely
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conscious. 	Mr. Willingham and the other vehicle occupants fled the scene.
Trooper Bader suffered extensive, life-threatening injuries. 	A Pennington
County grand jury indicted Mr. Willingham for first-degree murder, alternative
counts of aggravated assault on a law enforcement officer, possession of
marijuana with the intent to distribute, possession of marijuana, and
commission of a felony with a firearm.
A three-day jury trial was held in December 2017. 	At the conclusion of
the trial, the jury found Mr. Willingham guilty of counts 1, 2, 4, 5 and 6. 	The
circuit court sentenced Mr. Willingham to twenty-five years of imprisonment on
Count 1 (attempted first degree murder charge); twenty-five years of
imprisonment on Count 2 (aggravated assault on a law enforcement officer) to
be served concurrently with Count 1; fifteen years of imprisonment on Count 4
(possession of marijuana with intent to distribute) to be served consecutive to
Count 1 and Count 2; fifteen years of imprisonment on Count 5 (possession of
marijuana) to be served concurrently with Count 4 and consecutive to Counts
1 & 2: and five years of imprisonment on Count 6 (commission of a felony with
a firearm) to be served consecutively to Count 4 and Count 5). 	Collectively, the
sentence amounted to forty-five years of imprisonment. 	The circuit court also
imposed significant fines and restitution.
Mr. Willingham timely appealed and the South Dakota Supreme Court
affirmed his conviction on September 11, 2019. 	Currently, Mr. Willingham is
in the custody of the South Dakota State Penitentiary.
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Following his conviction, Mr. Willingham filed a writ of habeas corpus in
South Dakota state court which was dismissed on January 14, 2020, for
failure to state a claim upon which relief could be granted. 	Mr. Willingham did
not appeal the dismissal to the South Dakota Supreme Court; nor did he seek
a certificate of probable cause either with the circuit court or the state supreme
court. 	Mr. Willingham filed this federal habeas action on January 4, 2021.
For the reasons discussed below, this court respectfully recommends
granting Respondent’s Motion to Dismiss (Doc. 8) and dismissing Mr.
Willingham’s § 2254 habeas petition (Doc. 1).
DISCUSSION
I. 	Applicable Legal Standards
A. 	Fed R. Civ P. 12(b)(6) Motion to Dismiss
Respondent’s motion to dismiss is based on FED. R. CIV. P. 12(b)(6),
which allows dismissal if the petitioner has failed to state a claim upon which
relief can be granted. 	Petitioners must plead “enough facts to state a claim to
relief that is plausible on its face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
Under Federal Rule of Civil Procedure 8(a)(2), a petitioner must plead
only “a short and plain statement of the claim showing that the pleader is
entitled to relief.” 	Id. at 554-55 (quoting FED. R. CIV. P. 8(a)(2)). 	A complaint
does not need “detailed factual allegations” to survive a motion to dismiss, but
a petitioner must provide the grounds for his entitlement to relief and cannot
merely recite the elements of his cause of action. 	Id. at 555 (citing Papasan v.
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Allain, 478 U.S. 265, 286 (1986)). 	There is also a “plausibility standard” which
“requires a complaint with enough factual matter (taken as true)” to support
the conclusion that the petitioner has a valid claim. 	Id. at 556. 	The
petitioner’s complaint must contain sufficiently specific factual allegations in
order to cross the line between “possibility” and “plausibility” of entitlement to
relief. 	Id.
There are two “working principles” that apply to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	First, courts are not required to
accept as true legal conclusions “couched as factual allegation[s]” contained in
a complaint. 	Id. (citing Papasan, 478 U.S. at 286). 	“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” 	Id. (quoting Twombly, 550 U.S. at 555). 	Rule 8 “does not unlock
the doors of discovery for a petitioner armed with nothing more than
conclusions.” 	Iqbal, 556 U.S. at 678-79.
Second, the plausibility standard is a “context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” 	Id.
at 679 (quoting decision below Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir.
2007)). 	Where the petitioner’s allegations are merely conclusory, the court may
not infer more than the mere possibility of misconduct, and the complaint has
alleged-but has not “show[n]” that he is entitled to relief as required by Rule
8(a)(2). 	Iqbal, 556 U.S. at 679.
The Court explained that a reviewing court should begin by identifying
statements in the complaint that are conclusory and therefore not entitled to
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the presumption of truth. 	Id. at 679-680. 	Legal conclusions must be
supported by factual allegations demonstrating the grounds for a petitioner’s
entitlement to relief. 	Id. at 679; Twombly, 550 U.S. at 555; F ED. R. C IV. P.
8(a)(2). 	A court should assume the truth only of “well-pleaded factual
allegations,” and then may proceed to determine whether the allegations
“plausibly give rise to an entitlement to relief.” 	Iqbal, 556 U.S. at 679. 	These
are the principles guiding the court’s evaluation of respondents’ motion.
B. 	Principles Generally Applicable to § 2254 Petitions
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. 	Such petitions are governed by the Anti-
Terrorism and Effective Death Penalty Act (AEDPA). 	Under AEDPA, federal
courts may 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 the 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
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state court applied the clearly established federal law erroneously or
incorrectly. 	Id. at 411. 	“Rather, that application must also be unreasonable.”
Id.
C. 	Time Limits for Filing § 2254 Petitions
Section 2254 of Title 28 of the United States Code controls when a
person in state custody pursuant to a state court judgment applies for a writ of
habeas corpus in federal courts “on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 	See
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254 (2007). 	Section § 2244(d)(1) of Title 28 of the United States Code sets
out the statute of limitations for federal habeas cases filed under § 2254. 	See
28 U.S.C. § 2244(d). 	AEDPA requires “a state prisoner seeking federal habeas
corpus relief to file his federal petition within a year after his state conviction
becomes final.” 	Payne v. Kemna, 441 F.3d 570, 571 (8th Cir. 2006).
Specifically, § 2244(d)(1), in relevant part, states that:
A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment
of a State court. 	The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review; . . .
28 U.S.C. § 2244(d)(1).
When a state court criminal judgment becomes “final” was the subject of
the Supreme Court opinion in Gonzalez v. Thaler, 565 U.S. 134 (2012). 	When
a defendant pursues a direct appeal all the way to the state’s highest court, a
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conviction becomes final for purposes of commencing the statute of limitations
period, at “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.” 	Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.
1998). 	When a defendant pursues a direct appeal to the state’s highest court,
he gets the benefit of the 90-day period for petitioning for certiorari in the
United States Supreme Court, whether he in fact files such a petition or not.
Gonzalez, 565 U.S. at 149-50 (citing Jimenez v. Quarterman, 555 U.S. 113
(2009); and Clay v. United States, 537 U.S. 522 (2003)). 	The statute of
limitations begins to run either upon the denial of the petition for certiorari if
one was filed, or upon the expiration of the 90-day period for filing such a
petition if the defendant did not file a petition for certiorari. 	Id.
However, when a defendant does not pursue a direct appeal, or does not
pursue his direct appeal all the way to the state’s court of last resort, the
calculation of the one-year limitations period is different. 	For such defendants,
the AEDPA statute of limitations begins to run when the time for seeking direct
review with the next highest court expires. 	Gonzalez, 565 U.S. at 150. 	Thus,
in South Dakota, if a defendant appeals to the South Dakota Supreme Court
(there being no state court intermediate court of appeals), his judgment
becomes final 90 days following the issuance of the South Dakota Supreme
Court’s opinion affirming the conviction because that is the period of time
allowed to seek review at the next highest level--in this case, the United States
Supreme Court. 	If a South Dakota state court defendant does not pursue a
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direct appeal to the South Dakota Supreme Court, his judgment becomes final
30 days after the state circuit court judgment is filed because that is the period
of time allowed for seeking appeal to the South Dakota Supreme Court. 	See
SDCL § 23A-32-15.
The one-year AEDPA limitations period is tolled--or does not include--the
time during which a properly filed application for state post-conviction or other
collateral review is pending in state court. 	Faulks v. Weber, 459 F.3d 871, 873
(8th Cir. 2006); See 28 U.S.C. § 2244(d)(2). 	Thus, the 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 Correctional Facility, 338
F.3d 851, 853 (8th Cir. 2003).
Here, Mr. Willingham timely appealed his state court judgment to the
South Dakota Supreme Court. 	The South Dakota Supreme Court’s decision
was issued on September 11, 2019. 	Therefore, Mr. Willingham’s judgment
became final 90 days following the South Dakota Supreme Court’s opinion
affirming the conviction, which would have been in December of 2019.
However, approximately 50 days into the 90-day appeal window to the United
State Supreme Court, Mr. Willingham filed a state habeas proceeding on
November 18, 2019, which tolled the statute of limitations. 	The state court
denied Mr. Willingham habeas relief on January 14, 2020. 	Therefore, the
statute of limitations did not begin running until January 14, 2020. 	Mr.
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Willingham’s petition was filed on January 4, 2021, and therefore, was timely
filed.
D. 	State Court Exhaustion
Under AEDPA, federal habeas review of state court convictions is limited
to claims the petitioner previously presented to the state courts for
consideration:
(b)(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) 	(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
* * *
(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning of
this section, if he has the right under the law of the State to raise,
by any available procedure, the question presented.
28 U.S.C. § 2254(b), (c).
“[T]he state prisoner must give the state courts an opportunity to act on
his claims before he presents those claims to a federal court in a habeas
petition.” 	O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). 	If a ground for
relief in the petitioner’s claim makes factual or legal arguments that were not
present in the petitioner’s state claim, then the ground is not exhausted.
Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir. 1991). 	The exhaustion
doctrine protects the state courts’ role in enforcing federal law and prevents the
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disruption of state judicial proceedings. 	Rose v. Lundy, 455 U.S. 509, 518
(1982). 	The Supreme Court has stated:
Because “it would be unseemly in our dual system of government
for a federal district court to upset a state court conviction without
an 	opportunity 	to 	the 	state 	courts 	to 	correct 	a 	constitutional
violation,” 	federal 	courts 	apply 	the 	doctrine 	of 	comity, 	which
“teaches that one court should defer action on causes properly
within its jurisdiction until the courts of another sovereignty with
concurrent powers, and already cognizant of the litigation, have had
an opportunity to pass upon the matter.”
Id. at 518 (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)).
The exhaustion rule requires state prisoners to seek complete relief on all
claims in state court prior to filing a writ of habeas corpus in federal court. 	28
U.S.C. § 2254(b). 	Therefore, federal courts should dismiss a petition that
contains claims which the petitioner did not exhaust at the state level. 	See 28
U.S.C. § 2254; Rose, 455 U.S. at 522. 	“A claim is considered exhausted when
the petitioner has afforded the highest state court a fair opportunity to rule on
the factual and theoretical substance of his claim.” 	Ashker v. Leapley, 5 F.3d
1178, 1179 (8th Cir. 1993). 	The exhaustion requirement is waived “only in
rare cases where exceptional circumstances of peculiar urgency are shown to
exist.” 	Mellott v. Purkett, 63 F.3d 781, 784 (8th Cir. 1995).
II. 	Exhaustion of State Remedies/Procedural Default
Mr. Willingham’s § 2254 petition alleges: 1) ineffective assistance of
counsel; 2) improper selection of the jury; and 3) improper charging
documents. 	(Doc. 1). 	On appeal to the South Dakota State Supreme Court,
Mr. Willingham raised three issues on appeal: 1) whether defendant’s motion to
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suppress his statements should have been granted; 2) whether defendant’s
motion to suppress evidence seized from the traffic stop should have been
granted; and 3) whether the trial court should have denied defendant’s
proposed jury instructions on a lesser included offense. 	The South Dakota
Supreme Court found no error with the circuit court’s rulings and affirmed Mr.
Willingham’s conviction on September 11, 2019.
On November 18, 2019, Mr. Willingham filed an application for writ of
habeas corpus in state court with the Seventh Judicial Circuit. 	(Doc. 9-5). 	In
the state court habeas action, Mr. Willingham’s petition alleged the following:
1) ineffective assistance of counsel/violation of due process; and 2) that he was
denied the right to choose a jury of his own peers. 	Id. On December 12, 2019,
the state moved to dismiss the habeas petition. 	On January 14, 2020, the
Honorable Craig A. Pfeifle issued a memorandum opinion and order dismissing
the habeas petition. 	Specifically, in regards to his ineffective assistance of
counsel claim, Judge Pfeifle stated, “Petitioner’s allegations are unspecific,
conclusory, and speculative. 	Willingham does not provide any examples or an
analysis of how his attorney(s) provided him with ineffective assistance.
Consequently, the claims are subject to dismissal.” 	(Doc. 9-6 at p. 4).
Regarding his defective jury selection claim, the court also found this claim to
be unspecific, conclusory, speculative and lacking examples or legal argument.
Id. 	Additionally, Judge Pfeifle noted that this claim was procedurally defaulted
because Mr. Willingham did not raise this issue on direct appeal to the South
Dakota Supreme Court. 	Id.
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Mr. Willingham did not appeal the dismissal of the habeas petition to the
South Dakota Supreme Court. 	However, in June of 2020, Mr. Willingham filed
what he captioned, “Motion for Mistrial” and “Motion for Suppression
Evidentiary Affidavit” with file numbers for both his habeas case and his
underlying criminal case. 	The substance of the mistrial motion argues, in
more specific detail than his state habeas petition, that 1) counsel was
ineffective for failing to move for a change of venue; 2) that defendant did not
have a fair cross section for a jury pool; and 3) the evidence of the case
supported a charge of aggravated assault rather than attempted murder. 	The
substance of the suppression motion argues, in more detail than his state
habeas petition, that 1) counsel was ineffective for failing to bring a plea offer, if
one existed; 2) counsel was ineffective for allowing the defendant to participate
in the challenge or selection of jurors; and 3) that the evidence did not meet the
elements of the charges. 	On June 24, 2020, Judge Pfeifle issued a letter
finding that Mr. Willingham’s submissions were actually a second or
subsequent habeas application, of which he did not qualify to file another
application.
Shortly thereafter, Mr. Willingham resubmitted the same documents in
his state court habeas case. 	Judge Pfeifle responded on July 14, 2020, again
construing the pleadings as a second or successive petition, and returned the
documents as the court did not give him permission to file another application.
Mr. Willingham did not request a certificate of probable cause from the circuit
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court; nor did he request a certificate of probable cause from the State
Supreme Court.
As stated above, a federal court may not consider a claim for relief in a
habeas corpus petition if the petitioner has not exhausted his state remedies.
See 28 U.S.C. ' 2254(b). 	A claim is considered exhausted when the petitioner
has afforded the highest state court a fair opportunity to rule on the factual
and theoretical substance of his claim.@ 	Ashker, 5 F.3d at 1179. 	Therefore, a
federal court must determine whether the petitioner fairly presented an issue
to the state courts in a federal constitutional context. 	Satter v. Leapley, 977
F.2d 1259, 1262 (8th Cir. 1992).
A four-step analysis applies to determine whether a federal court can
consider a habeas petition when the petitioner had not presented the claims to
the state court. 	Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988).
Initially, Athe court must determine if the petitioner fairly presented the federal
constitutional dimensions of his federal habeas corpus claim to the state
courts.@ 	Id. 	If not, the federal court must next consider whether the
exhaustion requirement is nevertheless met because no Acurrently available,
non-futile state remedies through which petitioner can present his claim@ exist.
Id. (quoting Laws v. Armontrout, 834 F.2d 1401, 1412 (8th Cir. 1987)). 	If a
state remedy does not exist, the court must determine whether petitioner has
demonstrated Aadequate cause to excuse his failure to raise the claim in state
court properly.@ 	Id. (quoting Laws, 834 F.2d at 1415). 	If petitioner has shown
sufficient cause, the court must decide whether he has Ashown actual prejudice
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to his defense resulting from the state court=s failure to address the merits of
the claim.@ 	Id. 	The petitioner must prevail at each step of the analysis to
prevent dismissal of his petition. 	Id.
A. 	Did Willingham fairly present the federal constitutional
dimensions of his federal habeas corpus claim to the state
courts?
Fairly presenting a federal claim requires more than simply going
through the state courts:
The rule would serve no purpose if it could be satisfied by raising
one claim in the state courts and another in the federal courts.
Only if the state courts have had the first opportunity to hear the
claim sought to be vindicated in a federal habeas proceeding does
it make sense to speak of the exhaustion of state remedies.
Accordingly, we have required a state prisoner to present the state
courts with the same claim he urges upon the federal courts.
Picard v. Connor, 404 U.S. 270, 276 (1971). 	It is also not enough for the
petitioner to assert facts necessary to support a federal claim or to assert a
similar state-law claim. 	Ashker, 5 F.3d at 1179. 	The petitioner must present
both the factual and legal premises of the federal claims to the state court.
Smittie, 843 F.2d at 297 (citing Laws, 834 F.2d at 1412). 	AThe petitioner must
>refer to a specific federal constitutional right, a particular constitutional
provision, a federal constitutional case, or a state case raising a pertinent
federal constitutional issue.= @ Ashker, 5 F.3d at 1179. 	This does not, however,
require petitioner to cite Abook and verse on the federal constitution.@ 	Picard,
404 U.S. at 278 (citing Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.
1958)). 	The petitioner must simply make apparent the constitutional
substance of the claim. 	Satter, 977 F.2d at 1262.
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Here, Mr. Willingham’s claim is clearly not exhausted at the state level.
Following the circuit court’s denial of his habeas petition, Mr. Willingham had
the opportunity to pursue further relief, including requesting a certificate of
probable cause from the circuit court and requesting a certificate of probable
cause from the state Supreme Court if the circuit court refused to issue such a
certificate. 	See SDCL § 21-27-18.1. 	Mr. Willingham did neither in this case.
Therefore, it is clear he has not exhausted his state court remedies.
B. 	Are there currently available, non-futile state remedies?
AOnly after some clear manifestation on the record that a state court will
not entertain petitioner=s constitutional claims even if fairly presented will the
exhaustion requirement be disregarded as futile.@ 	Smittie, 843 F.2d at 297
(citing Eaton v. Wyrick, 528 F.2d 477, 482 (8th Cir. 1975)). 	When a petitioner
fails to exhaust state remedies, the federal court normally should dismiss the
petition without prejudice to allow the petitioner to properly exhaust his
remedies. 	Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998).
“However, such dismissal is not an appropriate course of action where there
are no nonfutile avenues of relief available to the petitioner in state court.”
Kurtenbach v. Dooley, No. 5:15-CV-05063-JLV, 2016 WL 11407827, at *8
(D.S.D. July 28, 2016), report and recommendation adopted, 2016 WL
5135915 (D.S.D. Sept. 21, 2016).
The statute of limitations under South Dakota law for Mr. Willingham to
bring a state habeas petition is two years. 	See SDCL § 21-27-3.3. 	Here, no
further avenues of nonfutile relief are available to Mr. Willingham in state
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court, as the two year statute of limitations has lapsed. 	But that does not
equate with a conclusion that this court is now free to review the merits of his
federal constitutional habeas claims. 	Instead, the court must analyze the
application of the procedural default doctrine to Mr. Willingham’s case.
Closely related to the doctrine of state court exhaustion is the doctrine of
procedural default. 	Both doctrines are animated by the same principals of
comity—that is, in our dual system of government, federal courts should defer
action on habeas matters before them when to act on those petitions would
undermine the state courts’ authority, which have equal obligations to uphold
the constitution. 	See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (quoting
Rose, 455 U.S. 509). 	While the exhaustion rule asks whether a petitioner has
exhausted his remedies in state court, the procedural default rule asks how he
has exhausted: did the petitioner properly exhaust those remedies under state
law? 	O’Sullivan, 526 U.S. at 848.
“Procedural default” occurs when a habeas petitioner fails to follow a
state procedural rule in presenting his federal constitutional claim in the state
courts. 	Trevino v. Thaler, 569 U.S. 413, 421 (2013). 	The doctrine of
“procedural default” is intended to “prevent federal courts from interfering with
a State’s application of its own firmly established, consistently followed,
constitutionally proper procedural rules.” Id. If a habeas petitioner
“procedurally defaults” a claim in state court by failing to follow a state
procedural rule, and if the last state court “rendering a judgment in
[petitioner’s] case ‘clearly and expressly’ states that its judgment rests on a
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state procedural bar,” then federal courts may not consider a federal claim on
the merits. Harris v. Reed, 489 U.S. 255, 263 (1989). This is true even if the
state court also addresses the claim on the merits in the alternative. Id. at 264
n.10.
If federal courts allowed procedurally defaulted claims to be heard on
their merits in federal court, they would be allowing habeas petitioners to
perform an “end run” around state procedural rules. Coleman, 501 U.S. at
731-32, 735 n.1. However, where no further non-futile remedy exists in state
court, it is not feasible to require the petitioner to return to state court as
would be the case in a dismissal for failure to exhaust state remedies. 	Here, it
would be pointless to remand Mr. Willingham back to state court as there are
no more state remedies available to him, as the two year statute of limitations
has elapsed.
A state procedural default bars federal habeas review unless the
petitioner can demonstrate (1) “cause” for the default and (2) actual prejudice
as a result of the violation of federal law. 	Maynard v. Lockhart, 981 F.2d 981,
984 (8th Cir. 1992) (citations omitted, emphasis added). 	Here, Mr. Willingham
has procedurally defaulted his claim in state court because he failed to move
the South Dakota Supreme Court for a certificate of probable cause. 	Therefore,
the court turns next to an analysis of whether Mr. Willingham has established
cause and prejudice.
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C. 	Cause and Prejudice
“The requirement of cause . . . is based on the principle that petitioner
must conduct a reasonable and diligent investigation aimed at including all
relevant claims and grounds for relief . . .” 	Cornman v. Armontrout, 959 F.2d
727, 729 (8th Cir. 1992). 	The habeas petitioner must show that “some
objective factor external to [petitioner] impeded [his] efforts.” 	Id. (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)) (emphasis added).
A petitioner may show cause by demonstrating that the factual or legal
basis for a claim was not reasonably available to the petitioner at the time or
that there was interference by officials which prevented the petitioner from
exhausting his state remedies. 	Murray, 477 U.S. at 488. 	A petitioner’s lay
status, pro se status, and lack of education are not sufficient cause to excuse a
procedural lapse in failing to pursue state court remedies. 	See Stewart v. Nix,
31 F.3d 741, 743 (8th Cir. 1994); Smittie, 843 F.2d at 298. 	Illiteracy or low
intelligence are also not enough to demonstrate cause. 	See Criswell v. United
States, 108 F.3d 1381, *1 (8th Cir. 1997) (unpub’d.); Cornman, 959 F.2d at
729. 	Finally, neither is ignorance of the law. 	Maxie v. Webster, 978 F.2d 1264,
*1 (8th Cir. 1992) (unpub’d.).
Mr. Willingham has failed to respond to the government’s motion to
dismiss or to state any basis for the “cause” of his procedural default. 	If no
Acause@ is found, the court need not consider whether actual prejudice
occurred. 	Maynard, 981 F.2d at 495; Wyldes v. Hundley, 69 F.3d 247, 253
(8th Cir. 1995) (citations omitted). 	Furthermore, Mr. Willingham has not
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demonstrated a “fundamental miscarriage of justice.”1 Murray, 477 U.S. 478,
785 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982).
The doctrine of procedural default is not intended to “create a procedural
hurdle on the path to” federal habeas relief. 	Mellott, 63 F.3d at 784. 	However,
strong comity concerns underlie the reason for the rule’s adoption. 	Id.
Mr. Willingham has not alleged any grounds which would support a finding by
this court that “cause” exists which would excuse his failure to comply with the
state’s rules. 	Accordingly, the court recommends that Mr. Willingham’s federal
habeas petition be dismissed, again for procedural default. 	A dismissal on
grounds of procedural default is a dismissal with prejudice, unlike a dismissal
for failure to exhaust state remedies, which is without prejudice. 	See
Armstrong v. Iowa, 418 F.3d 924, 926-27 (8th Cir. 2005) (dismissal with
prejudice is appropriate where the ground for dismissal is procedural default).
CONCLUSION
Based on the foregoing facts, law and analysis, the court respectfully
recommends the following:
1. Respondent’s Motion to Dismiss (Doc. 8) be granted; and
2. Mr. Willingham’s § 2254 petition (Doc. 1) be dismissed with prejudice.
1 To fit within the fundamental miscarriage of justice exception, the petitioner
must make a showing of actual innocence. 	Schlup v. Delo, 513 U.S. 298, 321,
(1995). 	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). 	Mr. Willingham does not invoke the
fundamental-miscarriage-of-justice exception, so the court does not analyze
that issue.
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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 17th day of May, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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