Harrison v. Fluke et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
ANTHONY ROY HARRISON,
Petitioner,
vs.
BRENT FLUKE1,
Respondent.
5:21-CV-5041-JLV
REPORT AND RECOMMENDATION
REGARDING RESPONDENT’S
MOTION FOR JUDGMENT ON THE
PLEADINGS (DOC. 10)
INTRODUCTION
This matter is before the court on Petitioner Anthony Roy Harrison’s pro
se petition for habeas relief pursuant to 28 U.S.C. § 2254. 	(Doc. 1). 	Mr.
Harrison filed the pending habeas petition on July 19, 2021. 	Id. 	Respondent
filed a Motion for Judgment on the Pleadings on March 8, 2022. 	(Doc. 10).
The pending matter was referred to this Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B).
FACTS
Mr. Harrison pled guilty to Counts 1, 2, and 7 of the Indictment which
charged Grand Theft, Forgery, and Unauthorized Possession of a Controlled
1 In its Order to Show Cause, the court incorrectly captioned the case to name
Brent Fluke and Jason Ravonsburg. 	The proper named party is Brent Fluke
who is the Warden of the Mike Durfee State Prison where Petitioner Anthony
Roy Harrison is incarcerated. 	Respondent’s Motion to Substitute (Doc. 8) is
Granted.
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Substance, respectively. 	(Doc. 13-2). 	On June 12, 2020, Mr. Harrison was
sentenced by the Honorable Jane Wipf Pfeifle of the Seventh Judicial Circuit in
the State of South Dakota to serve ten years (10) years in the South Dakota
State Penitentiary, with three years suspended for Count 1; five years (5) with
one year suspended for Count 2; and three years (3) with one year suspended
for Count 7. 	All sentences were ordered to be served concurrently. 	Mr.
Harrison received credit for time served in the amount of thirty-one (31) days.
(Doc. 13-2). 	The Amended Judgement was filed on July 8, 2021. 	Mr. Harrison
did not file a direct appeal to the South Dakota Supreme Court.
Mr. Harrison filed an Application for Writ of Habeas Corpus Petition in
his state court criminal case claiming that the State of South Dakota lacked
jurisdiction to prosecute him relying on the Fort Laramie Treaty of 1868 and
the McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), decision. 	(Doc. 13-6). 	The
Honorable Craig A. Pfeifle denied Mr. Harrison’s application on the grounds
that the habeas petition was barred by res judicata in that Mr. Harrison failed
to raise a jurisdiction challenge in a direct appeal to the South Dakota
Supreme Court. 	(Doc. 13-9). 	Additionally, in his order, Judge Craig A. Pfeifle
addressed the substance of Mr. Harrison’s petition and held that Mr.
Harrison’s claim that the state court lacked jurisdiction under McGirt v.
Oklahoma, 140 S.Ct. 2452 (2020), was without merit. 	Mr. Harrison sought a
certificate of probable cause to appeal Judge Craig A. Pfeifle’s ruling to the
South Dakota Supreme Court; the request was denied. 	Mr. Harrison filed
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motions for certificates for probable cause with the South Dakota Supreme
Court. 	Those motions were denied on June 25, 2021. 	(Doc. 1-1 at p. 34).
Mr. Harrison filed the pending federal 28 U.S.C. § 2254 habeas petition
on July 19, 2021. 	(Doc. 1). 	The Respondent moved for judgment on the
pleadings on the grounds that Mr. Harrison’s claim is improperly exhausted
the therefore procedurally defaults. 	Alternatively, Respondent argues that Mr.
Harrison’s claim is without merit. 	(Doc. 10).
For the reasons discussed below, this court respectfully recommends
granting Respondent’s Motion (Doc. 10) and dismissing Mr. Harrison’s 2254
habeas petition (Doc. 1).
DISCUSSION
I. 	Applicable Legal Standards
A. 	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
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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
state court applied the clearly established federal law erroneously or incorrectly.
Id. at 411. “Rather, that application must also be unreasonable.” Id.
B. 	State Court Exhaustion and Procedural Default
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
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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
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. 	Mr. Harrison Failed to Exhaust State Remedies
When a petitioner fails to exhaust state remedies, the federal court
normally should dismiss the petition without prejudice to allow the petitioner
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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, No. CV 15-5063-JLV, 2016 WL 5135915 (D.S.D. Sept. 21, 2016).
Here, no further avenues of nonfutile relief are available to Mr. Harrison in
state court.
Judge Craig A. Pfiefle of the Seventh Judicial Circuit Court for the State
of South Dakota held in his denial of Mr. Harrison’s state habeas petition the
following:
Consequently, any claim that was or could have been raised on direct
appeal is barred by res judicata and not cognizable in a habeas action.
Petitioner’s claim that the court did not have jurisdiction over him could
have been raised on direct appeal but, as noted above, Petitioner did not
appeal. 	As a result, the claim is barred by res judicata.
Even though the claim is barred by res judicata, it is worth pointing out
that this Court does not lack jurisdiction over enrolled tribal members
who are charged with violating state laws in Pennington, Custer, or Fall
River Counties as said counties are no longer part of a reservation.
Harrison v. Fluke, 16CIV20-000082 at p. 4.
The court agrees with Judge Craig A. Pfiefle’s reasoning and as such, the
court finds that Mr. Harrison has procedurally defaulted by failing to raise the
jurisdictional challenge on a direct appeal. 	Because Mr. Harrison is barred to
seek state review of his claims, the court recommends the petition be dismissed
with prejudice.
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However, even assuming Mr. Harrison presents a habeas claim that is
not procedurally barred, his claim still fails on the merit.
III. 	Mr. Harrison’s § 2254 Habeas Petition Fails on the Merits.
Defendant argues the State of South Dakota, specifically the Custer
County court lacks personal jurisdiction in this matter because the land upon
which the alleged crime occurred should be considered “Indian country” for
jurisdictional purposes. 	(Docs. 1, 1-1). 	Defendant further argues that all land
west of the Missouri River was set aside as Indian County in the Fort Laramie
Treaty of 1868 and that only Congress can change the boundaries of Indian
Country, which Congress has not done. 	(Docs. 1, 1-1). 	In support of this
contention, the defendant cites the Supreme Court case of McGirt v.
Oklahoma, 140 S.Ct. 2452 (2020). 	However, McGirt is distinguishable from
this situation and will not deprive the State of South Dakota or Custer County
of personal jurisdiction over the defendant.
In McGirt, the Supreme Court found that the Creek Reservation,
although heavily divided through allotment, was never disestablished or
diminished. 	This meant that all the land that initially made up the original
reservation was still considered Indian country in the eyes of the law. 	Integral
in the Court’s decision was the fact that Congress had never expressly
disestablished or diminished the original Creek Reservation established in
1833.
The McGirt Court makes it very clear that Congress has the sole
authority to disestablish or diminish a reservation. 	‘“[O]nly Congress can
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divest a reservation of its land and diminish its boundaries.”’ 	Id. at 2462
(quoting Solem v. Bartlett, 465 U.S. 463, 470 (1984)). 	This power, though only
held by Congress, is quite important and can have far-reaching consequences.
“[T]he Legislature wields significant constitutional authority when it comes to
tribal relations, possessing even the authority to breach its own promises and
treaties.” 	Id. 	(citing Lone Wolf v. Hitchcock, 187 U.S. 553, 566–68 (1903)).
However, because this power is so significant, when disestablishing or
diminishing a reservation, Congress must “clearly express its intent to do so,
‘[c]ommon[ly with an] [e]xplicit reference to cession or other language
evidencing the present and total surrender of all tribal interests.’” 	Id. at 2463
(quoting Nebraska v. Parker, 577 U.S. 481, 488 (2016)).
After analyzing Congress’ acts affecting the Creek Nation, the McGirt
Court concluded Congress did not at any time explicitly disestablish the
reservation as outlined by the 1866 Treaty with the Creek. 	Id. at 2464.
“[B]ecause there exists no equivalent law [after the 1866 Treaty, ceding and
conveying a portion of the reservation to the United States,] terminating what
remained, the Creek Nation survived allotment.” 	Id. 	Therefore, the Creek
Reservation extends to the boundaries established by the 1866 Treaty, and
that land is Indian country. 	Id. at 2482. 	Defendant argues that like in McGirt,
“Congress has not passed any Act that clearly deminished [sic] the land set as
the Reservation in the Fort Laramie Treaty.” (Doc. 1-1, p. 15).
Defendant is incorrect. 	The Great Sioux Reservation has a somewhat
different history than the Creek Reservation in McGirt. 	Established by the Fort
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Laramie Treaty of 1868, the Black Hills and surrounding areas were set aside
for the use of the Sioux Nation. 	See United States v. Sioux Nation of Indians,
448 U.S. 371, 376 (1980). 	In 1877, however, Congress enacted an “agreement”
with the Sioux Nation into law. 	Id. at 381-83. 	This “1877 Act,” a rider to an
appropriations bill, specifically abrogated the Fort Laramie Treaty and
relinquished the Sioux Nation’s rights to the Black Hills. 	Id. 	In exchange for
the cessation of those lands, the Government offered subsistence rations for as
long as needed. 	Id. 	Ensuing litigation in the Indian Claims Commission, the
Court of Claims, and ultimately, the United States Supreme Court, led to the
Sioux Nation opinion holding that the 1877 Act effected a taking of tribal
property, which required the United States to make just compensation to the
Sioux Nation. 	Id. at 424.
Here, Congress has done more than allotted Great Sioux Reservation
land. 	Congress has expressly abrogated the Fort Laramie Treaty and
diminished the Great Sioux Reservation. 	As a result, the exterior borders are
as set out in the 1877 Act, not the Fort Laramie Treaty. 	Therefore, the land
upon which the alleged crime occurred is not considered “Indian country” as it
is located outside the remaining South Dakota reservations, so the State of
South Dakota and Custer County retain personal jurisdiction over the
defendant. 	Mr. Harrison’s habeas claim fails on the merits.
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CONCLUSION
Based on the foregoing reasons, the court respectfully recommends that
Respondents’ Motion for Judgment on the Pleadings (Doc. 10) be granted and
Mr. Harrison’s § 2254 petition (Doc. 1) be dismissed with prejudice.
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 16th day of March, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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