Whitepipe v. Weber (536 F. Supp. 2d 1070, 2007)

ORDER ADOPTING REPORTS AND RECOMMENDATIONS AND ORDER OF DISMISSAL

CHARLES B. KORNMANN, District Judge.

Petitioner pleaded guilty to rape and was sentenced to 20 years imprisonment on March 18, 2003. He appealed his conviction and sentence to the South Dakota Supreme Court and the Supreme Court affirmed on January 20, 2004. He filed a petition for a writ of habeas corpus in state court. The petition was denied and he appealed to the South Dakota Supreme Court. The Supreme Court affirmed on July 13, 2006. Petitioner timely filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.

The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on December 5, 2006, Doc. 15. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636. Petitioner filed objections, Docs. 17, 32, and a motion to stay this matter to allow him to return to state court to exhaust his unexhausted claims. The motion to stay was referred to Magistrate Moreno and the magistrate submitted a supplemental report and recommendation to the court on May 21, 2007, Doc. 35. The petitioner filed objections to the supplemental report and recommendations. Doc. 40. I have conducted a de novo review of the record.

I do not, of course, conduct a de novo review of the factual and legal determinations as made by the state courts. I do consider whether the state courts’ adjudications “resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Judge Moreno adequately and correctly sets forth the standards to be applied in this proceeding.

I have fully considered this entire matter, together with all the files and records herein. I agree with the magistrate that the only possible ground for relief would be the state court’s method of summoning additional jury panel members and whether trial counsel’s failure to object to the procedure constituted ineffective assistance of counsel. All other grounds for relief are defaulted or otherwise barred because they lack any possible merit. I agree that no evidentiary hearing should have been conducted and that counsel should not have been appointed. Petitioner has done a good job of setting forth his claims and the claims are readily understood.

Petitioner claims a violation of SDCL 16-13-42 in connection with the summons of additional jurors. Actually, the trial court proceeded under SDCL 16-13-43, claiming that the panel of petit jurors “would be” exhausted by challenges. A pro bono memorandum prepared by petitioner’s state habeas counsel also pointed out that the state trial court had proceeded under SDCL 16-13-43. This would be, however, at most a violation of state law and not of federal law. SDCL 16-13-43 speaks of the panel being exhausted. Thus, the trial court “jumped the gun” in anticipating that the panel would be exhausted before juror selection had begun. SDCL 16-13-43 provides that the court is to order the sheriff, deputy sheriff, or coroner to summon, without delay, a sufficient number of additional jurors. The trial court, with the agreement of both lawyers and the defendant, did not want to use the sheriff directly since he was almost certain to be called as a witness for the prosecution. The trial court ordered the sheriffs secretary (who may also do secretarial work for the prosecuting attorney) to telephone citizens from various communities within the county to report for duty. This procedure was very questionable since jurors are not to be selected based on whether or not the juror has a telephone. We also do not know whether the persons reached by telephone would have been “persons possessing the qualifications of jurors”, as required by the statute. We do not know whether the secretary identified herself as calling on behalf of the sheriff or what she told those she reached by telephone. I assume she did advise who she was and why she was calling on behalf of the sheriff. The fact that the judge and the lawyers had proceeded in this fashion in another case would be entirely immaterial. The matter could and should have been handled more carefully, in strict compliance with the statutes. I do not endorse or approve what was done here. I disagree with the statement by the magistrate that it was necessarily important that the sheriff did not personally execute the trial court’s order but rather delegated this responsibility to his secretary. That procedure certainly lessened the possibility of prejudice but does not answer all questions as to what was done. The secretary is alleged to have gone “randomly” through the telephone book. What that means I do not know. There is, however, no evidence or any claim that the additional panel members were selected subjectively. The only evidence is that the panel members were selected objectively. There is no claim or evidence that the sheriff or the secretary were “guilty” of any actual impropriety.

Petitioner has not produced any reliable data or statistics relating to Gregory County, South Dakota, or as to the jury selection in this case. I suspect, but do not know for sure, that more Native Americans than non-Native Americans do not have telephones in Gregory County. I will assume that to be true. We know also that petitioner did not, before the state trial court, object to the supplementation of the jury panel, raise any other “structural” error, or complain previously that the supplementation of 30 additional jurors caused him to decide to plead guilty. He made no such claim in connection with his motion to withdraw his guilty plea or on direct appeal to the South Dakota Supreme Court. The state courts found that he pled guilty because he obtained a favorable plea agreement and that his plea had nothing to do with the jury panel supplementation. These determinations are not unreasonable applications of clearly established federal law as established by the United States Supreme Court. They are also not unreasonable in light of the evidence presented in the state proceedings.

It is not surprising that almost all of the cases dealing with so-called “bystander jurors” stem from the Eighth Circuit. Cowry v. Livesay, 868 F.2d 842 (6th Cir. 1989), discusses the Eighth Circuit cases rather comprehensively. This includes Henson v. Wyrick, 634 F.2d 1080 (8th Cir.1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1981) (a case where the sheriff personally selected his acquaintances as additional panel members and seven of them actually served on the jury), Holt v. Wyrick, 649 F.2d 543 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982) (a case where the additional panel members were selected by a sheriff from a neighboring county on an objective basis), Anderson v. Frey, 715 F.2d 1304 (8th Cir.1983), cert. denied, 464 U.S. 1057, 104 S.Ct. 739, 79 L.Ed.2d 198 (1984) (a case where five deputy sheriffs were used to summon additional jurors, without any evidence of actual impropriety by the sheriff, although the sheriff had been involved in the investigation of the alleged crime and was obviously the immediate supervisor of the deputies, the court finding that there was potential prejudice), Russell v. Wyrick, 736 F.2d 462 (8th Cir.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 346 (1985) (a case in which the Court of Appeals rejected the argument that Anderson stood for the proposition that the participation of any individual possessing an institutional interest in the prosecution is sufficient to constitute a constitutional violation, the bottom line being that each case must be analyzed to determine the objectivity of the selection criteria and the extent of the involvement of the “interested official”), and Cody v. Solem, 755 F.2d 1323 (8th Cir.), cert. denied, 474 U.S. 833, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985) (a case where the coroner selected the bystander juror and the case went to trial with the bystander as a member of the jury). In Cody, the bystander juror was not selected by “an interested official or his or her subordinates or professional associates”, quoting from Anderson, 715 F.2d at 1309. Even if the sheriffs secretary was an “interested official”, this only tells us that due process rights may have been violated. Cody, at 1334, relying on Anderson, 715 F.2d at 1309. Like the magistrate, I am unable to find that petitioner’s due process rights were violated.

Having said all this, the bottom line is that the defendant pled guilty and did not continue with the trial. As the magistrate points out on page 1102 of Doc. 15, in general, once a defendant has pled guilty, the defendant cannot raise independent claims involving constitutional deprivations, including claims based on the legality of the jury selection process. That is true here as well.

For what it is worth, probably nothing, my experience as a trial court judge handling many hundreds of cases since 1995 involving assaults of a Native American woman or Native American child tell me that a Native American male and his attorney would not want very many Native American women serving on a jury in a case of this type. They know too much and have seen or heard too much, assuming even that they have not personally been assaulted. Many reported studies have pointed out the very high rate of sexual assaults of Native American women and children as compared with non-Native American women and children.

The petition should be denied. The report and recommendation and the supplemental report and recommendation should be adopted. All objections of the defendant should be overruled.

I also agree that this case is not appropriate for any further “stay-and-abeyance” as allowed for in Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528, 1534, 161 L.Ed.2d 440 (2005). The United States Supreme Court held in Rhines that:

[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the state courts, 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. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.

Rhines v. Weber, 544 U.S. at 277, 125 S.Ct. at 1535.

Petitioner’s claims that certain statements should have been suppressed and that the prosecutor committed a Brady violation were waived by his guilty plea. O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir.1988) (a defendant who pleads guilty “waives all challenges that do not relate to jurisdiction”). Both claims were either abandoned or unexhausted in state court. Stay and abeyance as to these claims is inappropriate because they are plainly meritless.

Petitioner’s claim that the filing of an habitual offender information violated Due Process was also unexhausted. I adopt the magistrate’s conclusion that this claim is frivolous. Thus, stay and abeyance is also inappropriate as to this claim.

Petitioner’s claims that he should have been allowed to withdraw his guilty plea and that his guilty plea was not knowing and voluntary were not exhausted. Nonetheless, the magistrate concluded that the claims are meritless and I adopt that conclusion. Stay and abeyance is, again, inappropriate for meritless claims.

Petitioner’s claim that the sentencing judge improperly considered a psycho-sexual evaluation in. imposing a sentence does not raise the violation of a federal Constitutional or statutory right. The claim is therefore not cognizable in a federal habeas proceeding. 28 U.S.C. § 2254(a). Again, stay and abeyance is not available as to this claim.

The magistrate concluded that petitioner’s claim that he pleaded guilty due to racial animus was frivolous. I adopt that conclusion. Stay and abeyance is inappropriate for this meritless claim.

Petitioner contends that certain of his claims were not exhausted because counsel was ineffective for failing to raise the claims. He did not raise his ineffective assistance claims in his state court habeas matter and therefore ineffective assistance of counsel is an unexhausted claim. The magistrate concluded that the underlying errors were meritless. I adopt that conclusion. It would therefore be futile for petitioner to exhaust his ineffective assistance claims as to those alleged errors. Stay and abeyance is not appropriate for his ineffective assistance of counsel claims.

In any event, Judge Moreno granted Whitepipe more than 10 weeks in which to present his unexhausted federal claims to the state court. He failed to do so. Good cause does not exist.

I have conducted a de novo review of the magistrate’s report and recommendation as to stay and abeyance and find that this is not one of the limited circumstances where stay and abeyance is appropriate.

Now, therefore,

IT IS ORDERED, as follows:

1. The petition for a writ of habeas corpus, is denied and dismissed with prejudice.

2. The report and recommendation, Doc. 15 and the supplemental report and recommendation, Doc. 35, are adopted.

3. Petitioner’s objections, Docs. 17, 32, and 40 are overruled.

4. The motion for a stay and abeyance, Doc. 24, is denied.

5. The motion for an extension of time to file objections, Doc. 37, is granted. The petitioner did file objections to the supplemental report and recommendation and those objections were considered.

2007 DSD 27

SUPPLEMENTAL REPORT AND RECOMMENDATIONS FOR DISPOSITION OF PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HA-BEAS CORPUS BY A PERSON IN STATE CUSTODY

MARK A. MORENO, United States Magistrate Judge.

[¶ 1] After the instant case was referred, this Court issued a Report and Recommendation, Docket No. 15, and then amended it to correct an inadvertent typographical error, Docket No. 22. Petitioner, Bryan W. Whitepipe (“Whitepipe”), moved to extend the time period to reply and file objections to the Report, Docket Nos. 19, 25 and 28, and he was granted leave to do so by both the District Court and this Court, Docket Nos. 20, 25, 30. Whitepipe also moved for a stay and abeyance order to allow him to present his unexhausted federal claims to the state court, Docket No. 24. Upon being directed by the District Court to handle the stay and abeyance motion on a report and recommendation basis, this Court then gave Whitepipe more than 10 weeks within which to make the required showing under Rhines v. Weber, 544 U.S. 269, 277-78, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) for a stay and abeyance order, Docket Nos. 26, 30. On March 19, 2007, Whitepipe filed objections and a reply to the Report, Docket No. 32. Respondent, Douglas Weber, Warden of the South Dakota State Penitentiary (“State”) thereafter filed a timely response to the objections and reply, Docket No. 33.

[¶ 2] This Supplemental Report and Recommendations augments the Report and Recommendation previously issued by the Court, a copy of which is attached hereto and incorporated herein by reference, and addresses Whitepipe’s objections and assignments of error as well as his stay and abeyance motion. The reason for making the initial Report a part of this Report and for attaching it herewith is to provide a single consolidated set of the Court’s factual findings and legal discussion for review. It is hoped that doing so will make the review process easier and help expedite the same.

I.

[¶ 3] Whitepipe first objects to the Court’s summary of the procedural history of the case and its descriptions of the various claims for relief he raised in state and federal courts. The summary and descriptions, however, are fairly recited, fully supported by the record and need not be disturbed. They shall therefore remain as written.

II.

[¶ 4] Whitepipe next objects to the Court’s rendition of the relevant facts because, he says, the same is based on “false statements deliberately presented as true” and “perjured testimony.” There is no basis for this objection and Whitepipe failed to properly develop the underpinnings for it in the state habeas proceedings. His conclusory allegations that the State’s trial witnesses testified untruthfully have little support in the record. Indeed, medical records do not contradict, in any significant manner, the testimony of the victim, Margaret (“Mitzi”) Hacker. And, Gregory County Sheriff Damon (“Charlie”) Wolf and Hacker’s accounts of what Whitepipe said, as well as Whitep-ipe’s own statements to Sheriff Wolf, are at odds with the allegations Whitepipe now makes.

[¶ 5] As for Whitepipe’s allegation that Hacker recanted in a telephone call to him at the jail, there is no evidence to support this allegation or, for that matter, that such a call was ever made. Instead, the record shows that Whitepipe called Hacker from jail and offered to buy her groceries if she did not testify against him.

III.

[¶ 6] Whitepipe objects to the Court’s determinations that the appointment of counsel and an evidentiary hearing are not warranted or necessary.

[¶ 7] Whitepipe has no constitutional or statutory right to counsel in a habeas proceeding such as this one. Morris v. Dormire, 217 F.3d 556, 558 (8th Cir.), cert. denied, 531 U.S. 984, 121 S.Ct. 439, 148 L.Ed.2d 445 (2000). His § 2254 petition does not raise complex legal and factual issues or ones that require further fact investigation. McCall v. Benson, 114 F.3d 754, 756 (8th Cir.1997); Hoggard v. Purkett, 29 F.3d 469, 471-72 (8th Cir.1994). He has clearly demonstrated, through his submissions, a threshold ability to articulate his claims and to represent himself. McCall, 114 F.3d at 756.

[¶ 8] Similarly, the factual basis for some of Whitepipe’s claims was sufficiently developed in state court. As to these claims, a federal court must defer to the state court’s findings of fact. 28 U.S.C. § 2254(e)(1).

[¶ 9] With respect to those claims he failed to develop in state court, Whitepipe has no right to an evidentiary hearing because he was unable to satisfy the requirements of § 2254(e)(2)(A). Schriro v. Landrigan, — U.S. -, -, 127 S.Ct. 1933, 1943, 167 L.Ed.2d 836 (2007). Regardless, Whitepipe has failed to establish that he has a convincing claim of innocence under § 2254(e)(2)(B). see Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), and that, in any event, such a hearing would enable him to develop a factual record that would entitle him to habeas relief under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Schriro, 127 S.Ct. at 1940-44.

[¶ 10] For these reasons, and those explained earlier in its Report and Recommendation, Docket No. 15 at 1094-97, the Court believes that neither the appointment of counsel nor an evidentiary hearing would be meaningful or is called for in this instance.

IV.

[¶ 11] As a further objection, Whitep-ipe seems to suggest that state court factual and legal determinations are subject to de novo review by federal courts. Whitep-ipe, however, is not entitled to relief on any of his claims that were adjudicated on the merits in state court unless the adjudication of such claims “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

[¶ 12] Here, the state court did not apply a rule that contradicts governing law (established by the Supreme Court) or, when confronted with a set of facts that were materially indistinguishable from a decision of the Supreme Court, nonetheless arrive at a different result. See Penny v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Collier v. Norris, 485 F.3d 415, 421 (8th Cir.2007). Nor did the state court apply the governing legal rule incorrectly and in an objectively unreasonable manner. Penry, 532 U.S. at 793, 121 S.Ct. 1910; Collier, 485 F.3d at 421.

[¶ 13] While the factual findings of the state court may be challenged in a § 2254 proceeding, they are subject to a much more deferential standard of review. Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001). The state court’s factual findings are “presumed to be correct” and can only be rebutted by “clear and convincing evidence” to the contrary. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006); Kinder, 272 F.3d at 538. Having applied these precepts to the case at hand, the Court is confident that the adjudications made in state court did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence that was presented. See Rice, 126 S.Ct. at 974.

[¶ 14] Exercising the requisite “limited and deferential review” that is called for by the AEDPA, see Evenstad v. Carlson, 470 F.3d 777, 781-82 (8th Cir.2006), the Court finds and concludes that Whitepipe is not entitled to federal habeas relief on any of his claims.

V.

[¶ 15] Whitepipe’s next objection, that Sheriff Wolf gave perjured testimony and forged Whitepipe’s name to the Miranda consent card, is wholly without merit. Whitepipe’s perjury/forgery claims were waived when his guilty plea was accepted by the trial court, see United States v. Smith, 422 F.3d 715, 724 (8th Cir.2005), cert. denied, 546 U.S. 1127, 126 S.Ct. 1112, 163 L.Ed.2d 921 (2006); State v. Hoeft, 1999 SD 24, ¶ 12, 594 N.W.2d 323, 326, and are now defaulted and unreviewable, see Clay v. Norris, 485 F.3d 1037, 1038-41 (8th Cir.2007); Interiano v. Dormire, 471 F.3d 854, 856-57 (8th Cir.2006); Armstrong v. Iowa, 418 F.3d 924, 925-26 (8th Cir.2005), cert. denied, 546 U.S. 1179, 126 S.Ct. 1351, 164 L.Ed.2d 63 (2006). In addition, given the state court record, the evidence that Whitepipe’s guilty plea was knowing, voluntary and intelligent and made after a valid waiver of his rights and the lack of any credible evidence to substantiate his perjury and forgery claims, there is no reason to delve into and/or overturn the state court’s factual and legal determinations and grant him § 2254 relief.

VI.

[¶ 16] Whitepipe next objects to the Court’s recommendation that he be denied relief on his habitual offender claim. Whi-tepipe claims that because he was never convicted of the underlying forgery offense (that was used as a basis for the habitual offender charge) the trial court lacked subject matter jurisdiction over the charge. Whitepipe also claims that the state’s attorney engaged in prosecutorial misconduct by vindictively “using the habitual offender charge to intimidate [him] into accepting a plea agreement.” He further claims that trial and appellate counsel were ineffective by not raising these claims in state court.

[¶ 17] Whitepipe’s ineffective assistance claim, however, is procedurally barred and not cognizable. Whitepipe failed to present the claim to the state court in a manner required by state procedural rules. And, the Supreme Court has made clear that a procedurally defaulted ineffective assistance of counsel claim cannot serve as “cause” to excuse the procedural default of another habeas claim unless the petitioner can satisfy the “cause and prejudice” standard of the ineffective assistance claim itself. Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

[¶ 18] Here, allowing Whitepipe to now use an ineffective assistance of counsel claim, which itself is procedurally defaulted, as “cause” to excuse his habitual offender claim, which he has also procedurally defaulted, would permit a federal court to take steps toward upsetting a state court conviction without giving the state courts an opportunity to address those claims in the first instance. Edwards, 529 U.S. at 451, 120 S.Ct. 1587; Carrier, 477 U.S. at 489, 106 S.Ct. 2639. To do so would undermine the very principles of comity and federalism the doctrines of exhaustion and procedural default are rooted in. It would likewise allow a habeas petitioner to escape from the deference accorded to state court rulings under the AEDPA, because there would be no state court ruling for a federal court to give deference to. Even more anomalous is that it would permit a claim for “cause”, never raised before in state court, to occupy a more favorable position in federal court than a claim for “cause” that was raised in state court.

[¶ 19] In any event, Whitepipe’s underlying due process claim has no merit. His guilty plea to the forgery offense led to a suspended imposition of sentence, a sentence the state court had the jurisdictional authority under the state Constitution to impose. See State v. Schempp, 498 N.W.2d 618, 620 (S.D.1993); State v. Huftile, 367 N.W.2d 193, 195-96 (S.D.1985); SDCL 23A-27-13. The South Dakota Supreme Court has plainly held that a suspended imposition of sentence may be used to enhance the penalty for a subsequent criminal law violation. State v. Marnette, 519 N.W.2d 35, 38 (S.D.1994); State v. Winchester, 438 N.W.2d 555 (S.D. 1989). Whitepipe’s habitual offender claim has no legal basis whatsoever.

[¶ 20] The same is true of Whitepipe’s vindictive prosecution claim. This claim falls squarely within and is foreclosed by Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) and its progeny. In Bordenkircher, the defendant was charged with uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of two to ten years in prison. 434 U.S. at 358, 98 S.Ct. 663. During plea negotiations, the prosecutor expressly indicated that if the defendant did not plead guilty to the forgery charge, the prosecutor would seek an indictment under a habitual offender statute which would subject the defendant to a mandatory sentence of life imprisonment. Id. at 358-59, 98 S.Ct. 663. The defendant refused to plead guilty, went to trial, was convicted of both the forgery and habitual offender charges and received a life sentence. Id. at 359, 98 S.Ct. 663. The Supreme Court, however, held that despite the threat made by the prosecutor during plea negotiations, the defendant’s due process rights were not violated. Id. at 365, 98 S.Ct. 663. In doing so, the Court had this to say:

It is not disputed here that [the defendant] was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity and enforcement is not in itself a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” To hold that the prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.

Id. at 364-65, 98 S.Ct. 663 (footnote and citations omitted). Whitepipe, while faced with unpleasant alternatives, was nonetheless free to reject the plea bargain made by the state’s attorney, continue on with his trial, and if convicted of one or more of the underlying offenses, insist on being tried on the habitual offender charge. There being no showing of presumptive or actual vindictiveness, Whitepipe cannot not succeed on his due process claim. See United States v. Vest, 125 F.3d 676, 678-79 (8th Cir.1997), cert. denied, 528 U.S. 1029, 120 S.Ct. 548, 145 L.Ed.2d 426 (1999); Nguyen v. United States, 114 F.3d 699, 704-05 (8th Cir.1997); United States v. Jacobs, 4 F.3d 603, 604-05 (8th Cir.1993).

VII.

[¶ 21] Whitepipe objects to the Court’s recommended disposition of his Brady claim. Whether couched in terms of a Brady violation or dressed up as an ineffective assistance of counsel one, Whitepipe has procedurally defaulted his claim and failed to provide the necessary “cause” and “prejudice” to excuse his default. Edwards, 529 U.S. at 450-53 & n. 3, 120 S.Ct. 1587; Interiano, 471 F.3d at 856-57; Armstrong, 418 F.3d at 925-26; Docket No. 15 at 1100-01 & nn. 7-8 (Report and Recommendation (Dec. 5, 2006)).

[¶ 22] Aside from this, the references Whitepipe points to, in the emergency room records, to further support his Brady argument, do little to aid his cause. Whether or not he had consensual sex with Hacker the day before kidnapping, raping and assaulting her, while relevant, is by no means exonerating. The same is true of any discrepancy as to when Hacker lost consciousness given all that she went through. Moreover, the relevance of DNA results in this case, when Hacker was vaginally penetrated with a beer bottle is, at best, obscure. See Evenstad, 470 F.3d at 784-85 (evidence not material); Collier, 485 F.3d at 422-25 (no resulting prejudice).

[¶ 23] It must be remembered that Whitepipe pled guilty to a rape offense. His decision to do so was motivated by a desire to limit his exposure and was not the result of the withholding of material evidence of guilt or bad faith gamesmanship on the part of the state’s attorney. Whitepipe’s arguments fly in the face of his own prior state court statements and the evidence of record and provide him no basis for the issuance of a writ of habeas corpus. Id.

VIII.

[¶ 24] Whitepipe objects to the Court’s findings and recommended disposition of his claims relating to the propriety of the jury selection process and his decision to plead guilty to raping Hacker.

[¶ 25] Generally, a petitioner who enters a valid and unconditional guilty plea is barred from challenging a pre-plea constitutional violation in a subsequent federal habeas corpus proceeding. Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Iron Wing v. United States, 34 F.3d 662, 664 n. 2 (8th Cir.1994). The petitioner, however, may contend that his guilty plea was not voluntary and intelligent, see Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or contend that the advice he received from his trial counsel was ineffective under the Sixth Amendment, Tollett, 411 U.S. at 267, 93 S.Ct. 1602; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See also Bass v. United States, 739 F.2d 405, 406 (8th Cir.1984) (“after a guilty plea, the focus of collateral attack is limited to the nature of counsel’s advice and the volun-tariness of the plea”). As the Supreme Court has recognized:

When a criminal defendant has solemnly admitted in open court he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standard set forth in McMann.

Tollett, 411 U.S. at 267, 93 S.Ct. 1602.

[¶ 26] Thus, only a petitioner’s pre-plea claims that attack the voluntary and intelligent character of his plea are cognizable under § 2254. To the extent that the petitioner challenges his trial counsel’s advice, he may only present claims relating to the plea advice; claims relating to pre-plea advice are barred. Tollett, 411 U.S. at 267, 93 S.Ct. 1602; see also Moran v. Godinez, 57 F.3d 690, 700 (9th Cir.1994), overruled on other grounds in Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

[¶ 27] Here, Whitepipe’s ineffective assistance claims do not implicate the voluntary or intelligent nature of his plea, nor do they question trial counsel’s advice regarding that plea. Although Whitepipe suggests that his counsel’s purportedly deficient performance frustrated him, thus indirectly contributing to his strategic decision to plead guilty rather than continue on with his trial, such implications fall far short of alleging that counsel’s erroneous advice contributed to an involuntary and unknowing plea. Whitepipe does not contend that counsel’s advice regarding him pleading guilty was erroneous. Indeed, the record reflects that Whitepipe initiated plea negotiations and accepted the plea agreement, not because of inaccurate advice from his counsel, but rather, to avoid a sentence that potentially could have been much longer than the one he received. As such, any pre-plea irregularities 'Whitepipe now alleges were waived when he entered his guilty plea in state court. Tollett, 411 U.S. at 266-67, 93 S.Ct. 1602; see also Thundershield v. Solem, 565 F.2d 1018, 1026-27 (8th Cir.1977), cert. denied, 435 U.S. 954, 98 S.Ct. 1585, 55 L.Ed.2d 805 (1978).

[¶ 28] Regardless, Whitepipe’s claim that his guilty plea was coerced by and the product of a corrupt jury selection process, a process which he never objected to, is inconsistent with both his behavior in court when he entered his plea and the testimony of his trial counsel at the state habeas hearing. The jury selection procedure that was utilized did not have a racially skewing effect and had no influence on Whitepipe’s decision to plead guilty. The state habeas court found that Whitepipe’s testimony to the contrary was not credible. Whitepipe’s right to a fundamentally fair trial was not violated. Cody v. Solem, 755 F.2d 1323, 1333-35 (8th Cir.), cert. denied, 474 U.S. 833, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985); see also Cowry v. Livesay, 868 F.2d 842, 845 (6th Cir.1989). Nor can it be said on this record, especially given the lack of any data relating to Gregory County or to Whitepipe’s own jury, that he was a victim of racial underrepresentation or discrimination. Singleton v. Lockhart, 871 F.2d 1395, 1397-99 (8th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989); State v. Aesoph, 2002 SD 71, ¶¶ 43-45, 647 N.W.2d 743, 757-58.

[¶ 29] Whether by virtue of the rule in Tollett or based on an insufficient showing on the merits, Whitepipe cannot prevail on any of his jury selection claims.

IX.

[¶ 30] Whitepipe’s objections relating to his guilty plea, including the State’s purported failure to honor the provisions of the plea agreement, the trial court’s alleged failure to advise him of his rights or the consequences of his guilty plea and the court’s supposed “premature” acceptance of the plea, are legally and factually unfounded.

[¶ 31] At the outset, Whitepipe’s claims have all been proeedurally defaulted and he has failed to provide the “cause” and “prejudice” needed to excuse his default. Ante at 1081. The Court is therefore foreclosed from reviewing them.

[¶ 32] Addressing the merits nonetheless, the record indicates that the state’s attorney lived up to the terms of the plea agreement and that Whitepipe unmistakably understood the terms of it and knowingly and voluntarily accepted the same. Trussell v. Bowersox, 447 F.3d 588, 591 (8th Cir.), cert. denied, — U.S. -, 127 S.Ct. 583, 166 L.Ed.2d 434 (2006); United States v. Granados, 168 F.3d 343, 345 (8th Cir.1999); Nguyen, 114 F.3d at 703. The letter from the state’s attorney (Whitepipe has belatedly tried to supplement the record with) concerned a pretrial plea offer (that he implicitly rejected by deciding to go to trial) and did not provide the basis for the actual plea agreement that was later entered into. There was no agreement that the State would recommend either an indeterminate sentence of between 5 and 15 years or a specific number of years, despite Whitepipe’s attempt now to manufacture one. The state’s attorney’s own words at the sentencing hearing speak for themselves:

[THE STATE’S ATTORNEY]: * * * As part of the plea agreement, I agreed that I would not stand up here and say he gets 25 — I wanted him to get 25 years or 15, and 7 will not do that. I did reserve the right to present evidence, and make observations or argument to you at this hearing. And that’s where I will confíne my arguments to.

(Emphasis added).

[¶ 33] Unlike the situation in United States v. Crusco, 536 F.2d 21, 24-26 (3d Cir.1976), there was no misunderstanding as to the maximum sentence Whitepipe faced (which he ultimately did not receive), nor was there a broken promise. Trussell, 447 F.3d at 591. The State did not stray from or go beyond that which it promised Whitepipe and thus he has no room to complain. United States v. Miller, 565 F.2d 1273, 1275 (3d Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978); United States v. Bradford, 461 F.Supp.2d 904, 917-18 (N.D.Iowa 2006); see also Lafferty v. United States, No. Civ. 05-30003, 2007 WL 1202747 at **3-4 (D.S.D. Apr. 20, 2007).

[¶ 34] As to the alleged deficiencies that occurred during Whitepipe’s change of plea, the record reflects that the trial court painstakingly explained his constitutional rights to him and the consequences of entering a guilty plea. Whitepipe’s insistence that the court accepted his plea before advising him of his rights is based on semantics, not facts. A review of the record reveals that after discussing the terms of the plea agreement with Whitep-ipe and his trial counsel, the court stated that it “would” accept the agreement. The court then advised Whitepipe of his rights and the consequences of pleading guilty,

determined that his plea was voluntary and that a factual basis existed for the same and after doing so, accepted his plea and found him guilty.

[¶ 35] Whitepipe asserts that his trial counsel lied, or at least misinformed him, about his parole eligibility. Whitepipe’s bald and unsubstantiated assertions, however, are insufficient to satisfy Strickland’s “prejudice” requirement. Whitepipe did not allege in his § 2254 petition that, had trial counsel correctly informed him about his parole eligibility date, he would have pled not guilty and insisted on going to trial. Nor has he alleged, even in his objections, any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Moreover, Whitepipe’s mistaken belief that he would become eligible after serving six months of his prison sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced under the plea agreement, but also his calculation of the time he likely would serve if he went to trial and was convicted. Inasmuch as Whitep-ipe has failed to allege, whether in his petition or otherwise, the kind of “prejudice” necessary to satisfy the second prong of the Strickland test, he is not entitled to an evidentiary hearing, as he maintains, or to habeas relief on his ineffective assistance assertion. See Hill, 474 U.S. at 60, 106 S.Ct. 366; see also Mabry v. Johnson, 467 U.S. 504, 509-11, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Buchheit v. Norris, 459 F.3d at 852-53.

[¶ 36] Lastly, Whitepipe asserts that the trial court and trial counsel’s failure to advise him of the state requirement that he would have to register as a sex offender, if convicted of the proffered rape offense, deprived him of his constitutional rights. Most courts have held, however, that registration as a sex offender, is a collateral, not a direct, consequence of a guilty plea that a defendant need not be advised of, see Bargas v. Burns, 179 F.3d 1207, 1216-17 (9th Cir.), cert. denied, 529 U.S. 1073, 120 S.Ct. 1686, 146 L.Ed.2d 493 (2000) (trial court not required to advise the defendant that he would have to appear before a state psychiatric panel for an evaluation prior to being released on parole); Gore v. Andrews, No. 96-6093, 1996 WL 627323 at *2 (10th Cir. Oct. 30, 1996) (the sex offender registration requirement is a collateral consequence of the defendant’s plea and counsel’s failure to inform him of it cannot rise to the level of ineffective assistance); State v. Timperley, 1999 SD 75, ¶ 17, 599 N.W.2d 866, 869 (trial court’s failure to advise the defendant about registration as a sex offender is not grounds for withdrawal of a guilty plea), and the Court agrees with their rationale for doing so. In view of the collateral nature of the registration requirement, it matters not whether Whitepipe was informed of the requirement.

X.

[¶ 37] Whitepipe makes a number of objections concerning the sexual offender evaluation the trial court ordered that he submit to before sentencing. Whitepipe, however, has failed to show that the court erred, much less committed error that infringed on a specific constitutional protection or that was so prejudicial as to amount to a denial of due process. Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir.), cert. denied, — U.S. -, 127 S.Ct. 725, 166 L.Ed.2d 565 (2006); see also Evenstad, 470 F.3d at 782-84. The court was authorized under state law to order the evaluation, see SDCL 23A-27-6; State v. Arguello, 502 N.W.2d 548, 556 (S.D.1993); State v. Grosh, 387 N.W.2d 503, 508-09 (S.D.1986), and the rules of evidence (which Whitepipe claims were not followed) do not apply to state sentencing proceedings, see SDCL 19-9-14(4); State v. Stevenson, 2002 SD 120, ¶ 15, 652 N.W.2d 735, 740-41; State v. Huettl, 379 N.W.2d 298, 304 (S.D.1985); see also Fed. R.Evid. 1101(d)(3).

[¶ 38] The objections raised are grounded, in large part, on Whitepipe’s contention that his participation in the preparation of a presentence investigation report, which included a sexual offender evaluation, violated his Fifth, Sixth and Eighth Amendment rights. These contentions, however, were at no time ever presented to the state court and are procedurally barred now from review. Ante at 1081. Whitepipe’s Fifth (and related Miranda ) and Sixth Amendment contentions are, in any event, plainly without merit. State v. Kauk, 2005 SD 1, ¶¶ 8-19, 691 N.W.2d 606, 608-11 (citing numerous federal cases); see also United States v. Archambault, 344 F.3d 732, 736 n. 4 (8th Cir.2003) (the Sixth Amendment does not apply to routine presentence interviews); United States v. Leonti, 326 F.3d 1111, 1119-20 (9th Cir.2003) (relying on the non-adversarial nature of presentence interview). Likewise, his Eighth Amendment contention has no factual or legal basis and must fall by the wayside as well. Because Whitepipe has failed to establish a specific federal constitutional violation or undue prejudice, and because the contentions he now makes are procedurally barred or have no merit, his objections must be overruled.

XI.

[¶ 39] Whitepipe’s objections to the Court’s recommended disposition of his racial animus claims must also be overruled because they are based on supposition and conjecture, are contradicted by the record and have no merit whatsoever. Contrary to his claims, the trial court did not refuse to release Whitepipe on bond because he is Indian, but rather, did so because:

1. He was charged with several violent offenses (rape, kidnapping and aggravated assault) and with being a habitual offender;

2. He was on felony probation at the time he allegedly committed the offenses;

3. He contacted Hacker, while in jail, and asked her to remain silent about the offenses;

4. He was a risk of flight; and

5.He was a danger to one or more persons or to the community.

The seriousness of the offenses charged, an alleged probation violation, obstruction or intimidation of a perspective witness, risk of flight and dangerousness to others are all relevant considerations in determining whether a defendant should be detained or released on bail. United States v. Montalvo-Murillo, 495 U.S. 711, 719-22, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990); United States v. Salerno, 481 U.S. 739, 746-55, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Bell v. Wolfish, 441 U.S. 520, 534 & n. 15, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); see also 3 W. LaFave, J. Israel & N. King, Criminal Procedure, §§ 12.3(a), (c)-(g), § 12.4(e) (2d ed. 1999 & 2007 Supp.). Beyond this, the record reflects that Whitepipe was given a suspended imposition of sentence for his forgery offense, Which is hardly an indication of racial animosity toward him. And, despite the violence he perpetrated on Hacker over the several-day period of captivity, the court nonetheless did not impose the maximum penalty on him for the rape crime he pled guilty to.

[¶ 40] Racism played no part in Whi-tepipe’s state case. He has failed to make any credible showing that racial bias affected his prosecution. United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). This being the case, Whitepipe’s objections, and the claims upon which they are based, cannot be sustained.

XI.

[¶ 41] In the last numbered paragraph of his objections, Whitepipe reiterates his earlier request, made in a separate motion, that his federal petition be held in abeyance to allow him to present his unex-hausted claims in state court. The Court delayed its decision on Whitepipe’s request to afford him an opportunity to make the required showing, under Rhines, 544 U.S. at 277-78, 125 S.Ct. 1528; see also Akins v. Kenney, 410 F.3d 451, 456 (8th Cir. 2005).

[¶ 42] The AEDPA requires that a ha-beas petitioner give the state court the first opportunity to consider his federal constitutional claims. See 28 U.S.C. § 2254(b). This long-standing exhaustion requirement is not jurisdictional, but “reflects the policy of federal-state comity ... designed to give the [s]tate an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (“the rule of comity reduces friction between the state and federal court systems by avoiding the ‘unseem[liness]’ of the federal district court’s overturning a state-court conviction without the state courts having an opportunity to correct the constitutional violation in the first instance.”) (alteration in original). The State rightly argues that Whitepipe has failed to exhaust several of his claims.

[¶ 43] The Court must decide how to deal with the claims Whitepipe has not presented in state court. Whitepipe wants his federal proceedings held in abeyance to allow state, and later federal, consideration of his claims. The State asserts that state procedural law forecloses both state and federal review of these claims. The Court finds and concludes that Whitepipe has not shown that federal or state review is available for his unexhausted claims.

[¶ 44] Citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), Whitepipe contends that he should be allowed to return to state court to pursue his unexhausted claims. Under Lundy, a mixed petition — that is, one that raises both exhausted and unexhausted claims— is subject to a “total exhaustion” rule that requires the dismissal of any petition containing unexhausted claims. 455 U.S. at 522, 102 S.Ct. 1198. Lundy, however, contemplated that the habeas petitioner could return to federal court after the requisite exhaustion. Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Aside from reaffirming Lundy’s total exhaustion requirement, see § 2254(b), the AEDPA imposes a strict one-year limitations period, see 28 U.S.C. § 2244(d)(1), that does not toll the pendency of federal proceedings, see Duncan v. Walker, 533 U.S. 167, 173-74, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). “As a result of the interplay between AEDPA’s 1-year statute of limitation and Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claim.” Rhines, 544 U.S. at 275, 125 S.Ct. 1528. Thus, a federal petitioner, who files a timely petition containing unexhausted claims, risks Lun-dy dismissal after the limitation period runs, thereby potentially closing the door to all federal review.

[¶ 45] Perhaps recognizing this procedural dilemma, Whitepipe does not ask for the dismissal of his federal petition without prejudice. Instead he seeks a stay-and-abeyanee safety valve so that he can obtain consideration of his unexhausted claims.

[¶ 46] In Rhines, the Supreme Court authorized a limited stay-and-abeyance practice in federal court to allow for the development of meritorious claims while at the same time preserving the AEDPA’s concern for finality and expediency. Id. at 278, 125 S.Ct. 1528. Rhines by no means requires federal courts to stay every petition that contains unexhausted claims. Rather, Rhines gives district courts discretionary stay-and-abeyance authority when a petitioner demonstrates that (1) there was good cause for failing to exhaust his claims in state court; (2) his unexhausted claims are not “plainly meritless”; and (3) he has not intentionally engaged in dilatory tactics. Id. at 277, 125 S.Ct. 1528.

[¶ 47] Whitepipe received one full round of state review. He made no effort there, either by primary review or in a successive habeas proceeding, to advance the many claims he raises for the first time now in federal court. For several reasons, the Court believes that a stay and abeyance is not appropriate here.

[¶ 48] First, Rhines prohibits the stay and abeyance of federal proceedings when “a petitioner engages in abusive litigation tactics or intentional delay[.]” Id. at 278, 125 S.Ct. 1528. A petitioner should request a stay early on in the federal case, preferably by filing a “protective” petition with the federal court and then expeditiously moving for a stay thereafter. Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Whi-tepipe filed his federal petition on August 24, 2006. He waited about four months to file his motion for a stay and abeyance. By the time the motion was filed, the parties had extensively briefed the legal and factual issues of the case and the Court had issued a 36-page report and recommendation that addressed these issues. Further delay of the case “frustrates AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings” and “also undermines AEDPA’s goal of streamlining federal habeas proceedings[.]” Rhines, 544 U.S. at 277, 125 S.Ct. 1528. As an equitable remedy designed to soften the harsh strictures of the AEDPA, stay and abeyance should only be available when a petitioner shows diligence and alacrity in making such an extraordinary request. Whitepipe’s sluggish and after-the-fact request to return to state court militates against granting him a stay and abeyance.

[¶ 49] Second, Whitepipe does not show good cause for failing to raise his unexhausted claims in state court. His claims are based on well-settled legal principles and factual predicates that were readily discoverable. Nothing about or inherent in the structure of South Dakota’s post-conviction review process thwarted Whitepipe’s efforts to bring these claims before the state courts. He could have raised the claims in his state proceedings. He could have also filed a skeletal federal petition and then promptly sought protection under Rhines. See Pace, 544 U.S. at 416, 125 S.Ct. 1807. Instead, he blames his state habeas counsel for not advancing the claims earlier.

[¶ 50] The Supreme Court has not yet determined whether ineffective assistance of habeas counsel provides “good cause” in the stay-and-abeyance context. In other procedural areas, such as a the cause-and-prejudiee gateway for overcoming a procedural bar, the Supreme Court and the Eighth Circuit have not looked favorably on blaming prior habeas counsel for not exhausting claims. Coleman, 501 U.S. at 752-54, 111 S.Ct. 2546; Interiano, 471 F.3d at 856-57; Armstrong, 418 F.3d at 927. Even if ineffective assistance of ha-beas counsel constitutes “good cause” under Rhines, Whitepipe has not shown that counsel’s representation was deficient. At best, the record indicates that counsel did not raise certain claims — a situation that arises any time a petitioner includes unex-hausted claims in his federal petition. Whitepipe has not demonstrated that counsel’s failure to raise the unexhausted issues was because of inaptitude, neglect or strategic decision making. Nor has he submitted any evidence, despite being given the opportunity to do so, from which the Court could find that the requisite “good cause” exists to excuse his failure to exhaust his claims in state court.

[¶ 51] Third, the exhaustion requirement, including the stay-and-abeyance safety valve to it, is predicated on the availability of state court remedies. § 2254(b)(1). South Dakota strictly enforces its procedural bar rule (codified at SDCL 21-27-16.1) and generally prohibits the filing of successive habeas applications. Although § 21-27-16.1 allows for the filing of a successive application in limited circumstances, Whitepipe does not allege that he meets any of the requirements for doing so. The claims he now raises could have easily been presented in his state habeas applications. And, he does not provide a viable argument that he is actually innocent of the rape offense he pled guilty to. See Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir.2007). Because South Dakota would apply its procedural law to prohibit the filing of a successive state application, staying and holding in abeyance Whitepipe’s federal petition would serve only to insert needless delay into these proceedings.

[¶ 52] Finally, Whitepipe has not made a compelling showing that, if presented to the state courts, his unexhausted claims would entitle him to habeas relief. Or, stated another way, that he would prevail in state court on any of these claims.

[¶ 53] Because Whitepipe does not meet the Rhines factors and/or because he has not shown that a state habeas avenue of relief remains open to him, his stay and abeyance motion/request should be denied.

XII.

[¶ 54] Based on the findings of fact and legal discussion set forth herein and in the initial Report and Recommendation, as amended, Docket Nos. 15, 22, and pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of the Rules Governing § 2254 Cases in the United States District Courts (“§ 2254 Rules”), it is hereby

[¶ 55] RECOMMENDED that Whitep-ipe’s Objections, Docket No. 32, be overruled. It is further

[¶ 56] RECOMMENDED that Whitep-ipe’s Motion for a stay and abeyance of his § 2254 petition, Docket No. 24, be denied. It is further

[¶ 57] RECOMMENDED that Whitep-ipe’s Petition for a writ of habeas corpus, Docket No. 1, be dismissed in its entirety and with prejudice. Dated this 21st day of May, 2007, at Pierre, South Dakota.

REPORT AND RECOMMENDATION FOR DISPOSITION OF PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY.

The above-captioned 28 U.S.C. § 2254 case was referred to this Court by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) for purposes of appointing counsel, if appropriate, conducting necessary hearings, including an evidentiary hearing, and submitting to the latter court proposed findings of fact and a recommendation for disposition of the case.

After careful review of the records on file, including the state court filings and transcripts in Gregory County Cr. Nos. 01-39 and 02-21 and Civ. No. 04-43 and South Dakota Supreme Court Appeal Nos. 22824 and 24152, and based on the totality of the circumstances present, the Court does now make the following findings of fact and report and recommendation for disposition in accordance with the District Court’s referral order.

I.

While on probation for a forgery offense, Petitioner, Bryan W. Whitepipe (“Whitep-ipe”), was charged with rape, kidnapping and aggravated assault. On the third day of trial, Whitepipe agreed to plead guilty to second degree rape (SDCL 22-22-1(4) (2000)) pursuant to a plea agreement. Whitepipe’s plea was subsequently accepted and he was sentenced to a prison term of 20 years, with credit for the 370 days he already spent in custody.

In his direct appeal to the state supreme court, Whitepipe raised two issues, to-wit: whether the trial court erred in denying his motion to suppress statements he made to the Gregory County Sheriff and whether he was entitled to be resentenced because that court allowed an Abel (sexual offender) Assessment to be included in his presentenee investigation report. The supreme court summarily affirmed Whitep-ipe’s conviction, concluding that it was manifest on the face of the briefs and the record that his appeal was without merit because the issues on appeal:

1. Were clearly controlled by settled South Dakota law or federal law binding upon the State; and

2. Were ones of judicial discretion and there clearly was not an abuse of discretion.

See State v. White Pipe, 683 N.W.2d 423 (S.D.2004) (table).

Subsequently, Whitepipe sought habeas relief in state court. In his state petition, Whitepipe alleged that his rights under the due process and “right to counsel” provisions of the federal and state Constitutions were violated. Specifically, Whitepipe claimed that:

1. The jury panel was improperly selected due to the trial court’s failure to follow the requirements of state , law;

2. He was coerced into pleading guilty after being informed by trial counsel that the trial court had directed Damon Wolf, the Gregory County Sheriff and a witness in the case, to call additional prospective jurors when a shortage in the venire panel was discovered;

3. He was likewise forced to plead guilty because none of the jurors called or seated were Native Americans, and as such, the jury that was selected did not represent a fair cross section of the people of Gregory County;

4. The trial court erred in refusing to allow him to withdraw his guilty plea before sentencing;

5. The prosecutor committed a Brady violation by withholding medical reports and testimony of Dr. Sophie Two Hawks, a physician and prosecution witness, who had examined the victim, Margaret Hacker; and

6. Trial counsel was ineffective because counsel failed to make proper objections in connection with the jury selection process and provided Whi-tepipe with inadequate advice that resulted in a guilty plea that was not an intelligent and voluntary choice.

At the end of the evidentiary hearing, the state habeas court determined, and habeas counsel agreed, that the crux of Whitep-ipe’s grounds for habeas relief was whether the trial court’s method of supplementing the jury panel amounted to structural error and whether trial counsel’s failure to object to the same constituted ineffective assistance of counsel. The habeas court denied relief on these grounds and then later denied Whitepipe’s certificate of probable cause.

Thereafter, Whitepipe sought a certification from the state supreme court that an appealable issue existed. In doing so, he raised only claims pertaining to the jury selection matter and the effectiveness of his counsel’s assistance with respect to it. The supreme court denied Whitepipe’s certification request.

Whitepipe then filed a timely pro se petition, under § 2254, for a writ of habeas corpus, raising issues that were either abandoned or waived in state court. The District Court ordered Respondent, Douglas Web