Landis v. Krabbenhoft

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Douglas Landis, 	)
)
Petitioner, 	) 	ORDER OF GRANTING MOTION TO
) 	DISMISS
vs. 	)
)
Dave L. Krabbenhoft, 	) 	Case No. 1:22-cv-094
)
Respondent. 	)
Before the Court is a Motion to Dismiss Section 2254 Petition by Respondent on June 27,
2022. For the reasons that follow, the court grants Respondent’s motion and dismisses Petitioner
Douglas Landis’s (“Landis”) petition for habeas corpus without prejudice.
I. 	BACKGROUND
A. 	Underlying Criminal Proceedings
On January 9, 2019, the Mountrail County state’s attorney charged Landis with two counts
of negligent homicide in violation of N.D.C.C. §§ 12.1-16-03 and 12.1-32-01(4). 	(Doc. No. 7-2).
Following a three-day trial in August 2020, a jury convicted Landis of both counts. (Doc. Nos. 7-4
through 7-8). On November 18, 2020, the state district court entered judgment, sentencing Landis
to a term of imprisonment of 36 months, with 18 months suspended, and 3 years probation. 	(Doc.
Nos. 7-9, 7-10).
Landis appealed the district court’s judgment, asserting there was insufficient evidence to
support his conviction. (Doc. No. 7-11). The North Dakota Supreme Court affirmed the judgment
in an opinion filed on April 20, 2021. (Doc. No. 7-14, State v. Landis, 2021 ND 69). Landis did
not petition the United States Supreme Court for a writ of certiorari.
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B. 	State Petition for Habeas Corpus
On April 27, 2022, Landis filed a Petition for Writ of Habeas Corpus with the North Dakota
Supreme Court. (Doc. Nos. 7-15, 7-16). In his petition he asserted a claim of ineffective assistance
of appellate counsel, the essence of which was that appellate counsel had failed to assert on direct
appeal a claim of ineffective assistance of trial counsel. (Doc. No. 7-15). On May 13, 2022, the
North Dakota Supreme Court issued an order denying the petition without comment on its merit.
(Doc. Nos. 7-15, 7-17).
C. 	Federal Petition for Habeas Corpus Relief
Landis filed an “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody” with this court on June 1, 2022. (Doc. No. 1). In his petition he asserts:
GROUND ONE: Sixth Amendment right violation for receiving ineffective
assistance of counsel.
Appellate counsel only raised on issue and failed to raise 4 issues with merit of
Constitutional right violations. 	Specifically, appellate failed to raise ineffective
assistance of trial counsel for 3 prejudicial errors, and failed to raise 3 Due Process
errors by the trial court. Any one of said issues would have required the conviction
to be reversed under well-established federal laws.
(Id.). 	Notably, he does not elaborate on how trial counsel was allegedly ineffective or on the
substance of the trial court’s alleged errors. 	Attached to his petition is a document captioned
“Memorandum of Law” in which he lists a number of United States Supreme Court cases and the
legal principles that they announced but does not apply these legal principles to the particular facts
and circumstances of his case.
D. 	Motion to Dismiss
On June 27, 2022, Respondent filed a motion to dismiss Landis’s petition for failure to
exhaust. (Doc. No. 5). Landis filed a response to Respondent’s motion on July 7, 2022. (Doc. No.
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8).
On September 26, 2022, the court issued an order in which it (1) deferred ruling on
Respondent’s motion pending receipt court can and should utilize the “stay-and-abeyance”
procedure with respect to his Landis’s petition, and (2) directed Landis to advise the court of what
efforts, if any, he has undertaken to exhaust his state court remedies during the pendency of
Respondent’s motion. (Doc. No. 9).
Landis and Respondent filed their respective supplemental briefs on October 11 and 18,
2022. (Doc. Nos. 10, 12). Consequently, the court will proceed to rule on Respondent’s motion
to dismiss.
II. 	DISCUSSION
A. 	Timing of Landis’s Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-
year statute of limitations for filing a habeas corpus petition. 28 U.S.C. § 2244(d)(1). 	It provides
in relevant part that the statute of limitations commences on “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)(A). If certiorari was not sought, the judgment is considered final
at the conclusion of all direct criminal appeals in the state system followed by the expiration of the
time allotted for filing a petition for the writ. King v. Hobbs, 666 F.3d 1132, 1135 (8th Cir. 2012);
Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir. 1999).
As noted above, the North Dakota Supreme Court denied Landis’s direct appeal on April 20,
2021. Landis’s deadline to petition the United States Supreme Court for a writ of certiorari expired
and his conviction was final for purposes of AEDPA on or about July 19, 2021. See §
2244(d)(1)(A)(ii); see also Sup. Ct. R. 13(1) (requiring petitions for a writ of certiorari to be filed
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within 90 days after entry of the judgment); Sup Ct. R. 13(3) (“The time to file a petition for a writ
of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from
the issuance date of the mandate (or its equivalent under local practice).”). AEDPA’s statute of
limitations was not tolled when Landis filed his habeas petition on June 1, 2022. Duncan v. Walker,
533 U.S. 167, 181–82 (2001) (“We hold that an application for federal habeas corpus review is not
an ‘application for State post-conviction or other collateral review’ within the meaning of 28 U.S.C.
§ 2244(d)(2)”).
Excluding the time during which his state habeas petition was pending before the North
Dakota Supreme Court, approximately 301 days accrued against AEDPA’s statute of limitations
when Landis filed his habeas petition with this court on June 1, 2022, approximately 317 days had
accrued when Respondent filed his Motion to Dismiss on June 27, 2022, and approximately 338
days had accrued when Landis filed his response in opposition to Respondent’s motion on July 7,
2022.
Consequently, AEDPA’s statute of limitations was days shy of expiring by the time Respondent’s
motion was ripe for the court’s consideration and has since lapsed.
B. 	Landis’s Failure to Exhaust Available State Remedies
It is well settled that a petitioner is required to properly exhaust his state remedies before the
federal district court can consider his habeas corpus petition. See 28 U.S.C. § 2254(b)–(c); Rhines
v. Weber, 544 U.S. 269, 274 (2005); Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006); Dixon
v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001). Proper exhaustion has two components. First, the
claim must be “fairly presented,” which requires that the petitioner present both the factual and legal
premises for the claim, with the latter being satisfied if there is a reference to the particular federal
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constitutional right or a citation to a state or federal case that raises the constitutional issue. Duncan
v. Henry, 513 U.S. 364, 365 (1995); Dansby v. Norris, 682 F.3d 711, 722–23 (8th Cir. 2012)
(vacated on other grounds); Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007). Second, the
petitioner “must give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established appellate review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
There are three other aspects of the exhaustion doctrine that are worth noting. The first is
that the exhaustion doctrine is satisfied if there are no state-court remedies available and exhaustion
would be futile, such as when the claim has been procedurally defaulted at the state-court level.
E.g., Armstrong v. Iowa, 418 F.3d 924, 926–27 (8th Cir. 2005). The second is that Rose v. Lundy,
455 U.S. 509 (1982), prohibits a petitioner from proceeding with a “mixed petition” of exhausted
and unexhausted claims. 	See also Rhines v. Weber, 544 U.S. at 273–74. 	The third is that §
2254(b)(2) authorizes the court to deny a claim on the merits notwithstanding a failure to exhaust.
E.g., Gringas v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008).
Respondent’s assertion that Landis failed to exhaust his state court remedies prior to filing
the instant petition is borne out by the record. The State has an established procedure for addressing
claims such as the ones being asserted by Landis post-conviction; state statute provides that an
individual who has been convicted of and sentenced for a crime can file an application for post-
conviction relief upon the following grounds:
a. The conviction was obtained or the sentence was imposed in violation of the
laws or the Constitution of the United States or of the laws or Constitution of
North Dakota;
b. The conviction was obtained under a statute that is in violation of the
Constitution of the United States or the Constitution of North Dakota, or that the
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conduct for which the applicant was prosecuted is constitutionally protected;
c. The court that rendered the judgment of conviction and sentence was without
jurisdiction over the person of the applicant or the subject matter;
d. The sentence is not authorized by law;
e. Evidence, not previously presented and heard, exists requiring vacation of the
conviction or sentence in the interest of justice;
f. A significant change in substantive or procedural law has occurred which, in
the interest of justice, should be applied retrospectively;
g. The sentence has expired, probation or parole or conditional release was
unlawfully revoked, or the applicant is otherwise unlawfully in custody or
restrained; or
h. The conviction or sentence is otherwise subject to collateral attack upon any
ground of alleged error available before July 1, 1985, under any common law,
statutory or other writ, motion, proceeding, or remedy.
N.D.C.C. § 29-32.1-01(1). It further provides that, except in circumstances that do not appear to be
present here, an application for post-conviction relief must be filed within two years of the date the
conviction becomes final. 	N.D.C.C. § 29-32-01(2).
The present record makes it crystal clear that Landis did not avail himself to the post-
conviction procedures established by state statute and file an application for post-conviction relief
in state court prior to filing his habeas petition with this court. Consequently, he has not fairly
presented his claims in state court much less given the state courts one full opportunity to resolve
them. In other words, he yet to exhaust his available state remedies.
Landis’s assertion that he exhausted his state remedies with the filing of a habeas petition
with the North Dakota Supreme Court is specious. 	The premise of the habeas petition filed by
Landis with the North Dakota Supreme Court was that he had been denied effective assistance of
appellate counsel on direct appeal because appellate counsel failed to raise issue of ineffective
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assistance of trial counsel. Not surprisingly, the North Dakota Supreme Court summarily denied
Landis’s petition without comment on its merits as it is well-settled that ineffective assistance of
counsel claims are not generally cognizable on direct appeal. See e.g., State v. Ricehill, 415 N.W.2d
481, 484 (N.D. 1987) (“Generally, an ineffective-assistance-of-counsel claim is more effectively
presented in a post-conviction-relief proceeding because the court in those proceedings is the court
before which the trial was held.”); Cf. United States v. Stauch, 460 Fed. App’x 612 (8th Cir. 2012)
(declining to consider a defendant’s ineffective assistance of counsel claim on direct appeal).
Consequently, the state courts have not yet had the opportunity to address the claims that Landis
asserts in the habeas petition filed with this court.
Whether Landis realizes it or not, the North Dakota Supreme Court’s denial of his habeas
petition does not foreclose him from filing with the state district court an application for post-
conviction relief. See e.g., State v. Ricehill, 415 N.W.2d 481, 484 (N.D. 1987) (affirming on direct
appeal a defendant’s judgment of conviction without prejudice and with the understanding that
defendant “may raise the ineffective-assistance-of-counsel issue at a proceeding for post-conviction
relief.”). And it does not appear that Landis’s window in which to file a state application for post-
conviction relief has closed. As noted above, Landis has two years from the date on which his
judgment is considered final to file such an application with the state courts. See N.D.C.C. § 29-32-
01(2). Consequently, it would not be an exercise in futility to require Landis to exhaust his state
remedies.
C. Rhines Stay-and-Abeyance Procedure
This court can proceed in one of two ways. First, it can dismiss Landis’s habeas petition
without prejudice. Second, it can perhaps stay Landis’s habeas petition while he exhausts his state
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court remedies. As noted above, Landis’s limitations period under AEDPA has now lapsed, which
could preclude Landis from returning and refiling his petition after he has exhausted his state court
remedies (and assuming that he did not obtain the relief he sought).
In Rhines v. Weber, the United States Supreme Court authorized a “stay-and-abeyance”
procedure that permits a federal district court to stay a federal habeas petition while the petitioner
exhausts his unexhausted claims in state court. The Court authorized the procedure as one remedy
for dealing with the problem created by (1) its decision in Rose v. Lundy, 455 U.S. 509 (1982),
which prohibits consideration of "mixed petitions," that is, petitions containing both exhausted and
unexhausted claims, and (2) Congress's later enactment of the one-year statute of limitations for
federal habeas petitions in AEDPA. The problem is that AEDPA's one-year statute of limitations
may run if a federal habeas petition is dismissed without prejudice while the petitioner returns to
state court to pursue his unexhausted claims, effectively eliminating access to later federal court
review. Rhines, 544 U.S. at 273-75.
Courts in the Third, Seventh, Ninth, and Tenth Circuits have held that the Rhines
stay-and-abeyance procedure is not limited to mixed petitions, and a district court, in the exercise
of its discretion, may stay a petition that contains only unexhausted claims. See e.g., Mena v. Long,
813 F.3d 907, 908 (9th Cir. 2016); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014); Heleva v.
Brooks, 581 F.3d 187, 191 (3d Cir. 2009) (leaving open the possibility of staying an unexhausted
petition) ; Dolis v. Chambers, 454 F.3d 721, 724 (7th Cir.2006). The Eighth Circuit has yet to
weigh in on this issue.
On September 26, 2022, the court ordered the parties to submit supplemental briefs on this
issue, reasoning:
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The court need not decide the issue at present. 	It will simply assume, without
deciding, that a Rhines stay might be appropriate even where a petition is completely
unexhausted and will require the parties to file supplemental briefs on this issue. In
the course of preparing their supplemental briefs, the parties should be mindful that,
in Rhines, the United States Supreme Court said that the stay-and-abeyance
procedure “should be available only in limited circumstances.” Rhines, 544 U.S. at
277. Specifically, “stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's failure to exhaust his claims first
in state court.” Id.; see also, e.g., Howard v. Norris, 616 F.3d 799, 801 (8th Cir.
2010) (citing Rhines). Furthermore, even where good cause exists, a “district court
would abuse its discretion if it were to grant [a petitioner] a stay when his
unexhausted claims are plainly meritless,” and a district court should not grant a stay
when a petitioner has engaged in abusive litigation tactics or intentional delay.
Rhines, 544 U.S. at 277; see also, e.g., Howard, 616 F.3d at 801 (citing Rhines).
(Doc. No. 10).
On October 11, 2022, Landis filed a supplemental brief. 	Therein, he asserted that had
complied with all procedural requirements when filing his habeas petition. However, he did not
address what, if any efforts, he has undertaken to pursue his remedies in state court. He also did not
address the propriety of the stay and abeyance procedure or otherwise request that the court stay his
petition while he exhausts his state court remedies.
On October 18, 2022, Respondent filed his response to Landis’s supplemental brief. 	He
asserts simply that, based on the standards set forth in Rhines v. Weber, 544 U.S. 269, Landis has
failed to demonstrate good cause to employ the “stay and abeyance” procedure with respect to his
petition.
Having reviewed the parties supplemental briefs, the court in the exercise of its discretion,
will not employ the “stay and abeyance” procedure in this case and instead dismiss Landis’s petition
without prejudice. Landis has not taken any apparent steps to exhaust his state court remedies. And
it apparent from his supplemental brief that he no intention at present of pursuing his remedies in
state court. If Landis has no intention pursuing his remedies in state court, then stay would serve
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no real purpose.
III. 	CONCLUSION
Landis has failed to exhaust his state court remedies prior to initiating this action.
Respondent’s Motion to Dismiss (Doc. No. 5) is therefore GRANTED. Landis’s petition (Doc. No.
1) is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated this 24th day of October, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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