Delehoy v. S. Dakota

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DEVON DELEHOY, Petitioner, v. STATE OF SOUTH DAKOTA; ATTORNEY GENERAL FOR THE STATE OF SOUTH DAKOTA; TERESA BITTINGER, WARDEN OF SOUTH DAKOTA STATE PENETENTIARY, Respondents.

No. 4:23-CV-04147-CCT

United States District Court, D. South Dakota, Southern Division

August 23, 2024

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING HABEAS PETITION

CAMELA C. THEELER UNITED STATES DISTRICT JUDGE

Petitioner Devon Delehoy, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Docket 1. Delehoy alleges that habeas relief is warranted because his Sixth, Eighth, and Fourteenth Amendment rights were violated when the trial court declined to issue a mistake of fact instruction, and because he received ineffective assistance of counsel. Id. at 11-32. Delehoy subsequently filed motions to sever and to compel. Docket 7; Docket 8.

The Attorney General for the State of South Dakota, on behalf of respondents the Attorney General for the State of South Dakota and the State of South Dakota, filed a motion pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings. Docket 10. Delehoy then filed a motion for summary judgement and another motion to compel. Docket 12; Docket 13.

On December 29, 2023, Magistrate Judge Veronica Duffy issued a report and recommendation on the various pending motions in the case. Docket 21. She recommended first, that the claims against the State of South Dakota and the Attorney General of the State of South Dakota be dismissed on the grounds that they are not the state officers with custody over Delehoy and thus are improper respondents. Id. at 6-7. Magistrate Judge Duffy clarified the nature of the respondents' motion and interpreted the motion, which was titled as a motion for “judgment on the pleadings” pursuant to Rule 12(c), as a motion to dismiss under Rule 12(b)(6). Id. at 8. Magistrate Judge Duffy then found that Delehoy's claim was time-barred by the limitation period applying to state prisoners seeking a writ of habeas corpus in federal court and that Delehoy failed to make a showing of actual innocence that would merit an exception to the limitation period. Id. at 8-11. Magistrate Judge Duffy also recommended that Delehoy's motion to sever and motion for summary judgment be denied. Id. at 12. Finally, Magistrate Judge Duffy recommended that both of Delehoy's motions to compel be denied. Id. at 13.

Delehoy timely filed objections to the report and recommendation. Docket 23. On January 11, 2024, the same day that Delehoy filed objections to the report and recommendation, he also filed a notice of interlocutory appeal of the report and recommendation to the United States Court of Appeals for the Eighth Circuit. Docket 24. The Eighth Circuit dismissed Delehoy's interlocutory appeal for a lack of jurisdiction and issued a corresponding mandate. Docket 39; Docket 45.

STANDARD OF REVIEW

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 as 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)(C); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994). Magistrate Judge Duffy provided a full, complete, and well-analyzed report and recommendation. The court adopts Magistrate Judge Duffy's rendition of the facts and her legal recommendations as modified and supplemented by this order and addresses the issues raised by Delehoy's objections.

DISCUSSION

Delehoy's response to the report and recommendation begins with a general condemnation of Magistrate Judge Duffy and the court. See Docket 23 at 1. Delehoy accuses Magistrate Judge Duffy of corruption and states that she is “must be blind” because she rejected the arguments from his various motions. Id. at 1-2. Delehoy's response also includes 12 numbered objections. See id. at 2-9. The court addresses these numbered objections individually, and sometimes at multiple points in this order. This is necessary because Delehoy's objections do not correspond neatly to Magistrate Judge Duffy's report and sometimes address multiple conclusions in one objection or stray into nonresponsive personal attacks. See id. Delehoy also provides a statement of the facts of the case that the court considers as a factual objection. See id. at 7-8. Objections 1, 2, 5, and 9 present mixed questions of law and fact, and the court therefore considers them to be quasi-factual objections that require de novo review of both the factual and legal issues they raise.

I. Factual Background and Objections

Magistrate Judge Duffy provided a summary of the facts of the case and of its procedural history. Docket 21 at 2-6. The court adopts the facts from the report and recommendation in full. The court also recounts the facts where relevant, provides an expanded discussion of the relevant testimony from Delehoy's criminal trial, and addresses Delehoy's factual objections.

On June 26, 2017, Delehoy was arrested and later charged in a sevencount indictment for events that transpired during a car ride he took with his romantic partner Kari Vaughn. Criminal Record at 4, 15-17.^[1]The allegations that led to Delehoy's arrest were, in the broadest terms, that during the early morning hours of June 26, 2017, Delehoy drove Vaughn to a remote area outside of Belle Fouche, South Dakota, threatened to kill her, and physically and sexually assaulted her. Id. at 15-17, 269-300.

A jury trial began on March 5, 2018, in the Fourth Circuit Court for the State of South Dakota. Id. at 302. The evidence at trial included testimony from Vaughn. Id. at 993-1051. Vaughn's testimony is relevant to Delehoy's objections, and thus the court recounts it in part.

Vaughn testified at that around 2:00 a.m. on June 26, 2017, Delehoy picked her up from her home in Belle Fouche so that they could go to the Common Cents in Belle Fouche and fill his vehicle with gasoline. Id. at 996-97. Vaughn testified that after she bought Delehoy gasoline at the Common Cents, they agreed to go to Delehoy's home in Spearfish. Id. at 998. Vaughn testified that on the way to Spearfish, Delehoy began to become agitated and berate her, and that after arriving in Spearfish, he turned the car around and announced that they were going back to Belle Fouche. Id. at 998-1000.

Vaughn testified that the atmosphere in the car changed dramatically when, instead of dropping her off at her home in Belle Fouche, Delehoy continued north of town past Water Tank Road and told Vaughn that he was taking her out into the country to kill her. Id. at 1001. Vaughn testified that Delehoy drove her 30 to 40 miles north of Belle Fouche, parked on a dirt road, spat on her, and hit her in the back of the head so hard that she fluttered in and out of consciousness. Id. at 1002-05. She testified that Delehoy began to drive north again, then turned around toward Belle Fouche. Id. at 1007. Vaughn testified that Delehoy then parked the car and told her he was going to take her into the country for three days and three nights, before beginning to drive back toward Belle Fouche. Id. at 1008-10. Vaughn testified that Delehoy allowed her to make phone calls to her ex-husband and mother in order to coordinate getting her daughter to church, as it was early in the morning at this point, but that he would have hurt her if she said she needed help. Id. at 1008. She said that Delehoy continued to drive toward Belle Fouche, that his driving was erratic, and that he “play[ed] chicken” with oncoming trucks by swerving in front of them. Id. at 1009. Vaughn testified that Delehoy again stopped the car at a turnoff, and that Delehoy allowed her to leave the car to urinate while he watched from the car. Id. at 1009-10. Vaughn testified that when she got back in the car, Delehoy exposed himself and forced her to perform oral sex on him and have sexual intercourse. Id. at 1010-15. She testified that after ejaculating, Delehoy cried, apologized, and allowed her to drive the car back to her home. Id. at 1015-16. Vaughn testified that she drove to her home in Belle Fouche and was able to go inside alone. Id. at 1016-17.

Vaughn testified that she then picked up her daughter and dropped her off at church, but instead of attending the service herself, Vaughn visited her friend Chalsey Sheperd. Id. at 607, 1017. Vaughn testified that she confided in Sheperd about the harrowing night she had experienced. Id. at 1018. She testified that at some later point that same day, Delehoy called Sheperd's workplace and impersonated a police officer, prompting Sheperd's boss to contact law enforcement. Id. at 1018-19. When law enforcement arrived to investigate the report, Sheperd told the officers that Vaughn had been raped the night before. Id. at 1018-19, 1061.

Also relevant to Delehoy's objections is a recording that Sheperd made of a phone call from Delehoy to Vaughn. When Vaughn disclosed to Sheperd what Delehoy had put her through “Sheperd suggested Vaughn call Delehoy so the two could record his statements.” State v. Delehoy, 929 N.W.2d 103, 106 (S.D. 2019); Appeal Record at 167. Vaughn called Delehoy on speakerphone, and Sheperd recorded the conversation using her phone. Delehoy, 929 N.W.2d at 106; Appeal Record at 167. Special Agent Elbert Andress of the South Dakota Division of Criminal Investigation later interviewed Sheperd, and during that interview, Sheperd played the recording for him, and Agent Andress recorded a portion of...