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Sabby v. Smith

United States District Court, D. Minnesota

February 5, 2015

David Randy Sabby, Petitioner,
Michelle Smith, Respondent.

David Randy Sabby, Jackson, GA, pro se Petitioner.

Matthew Frank, Aaron K. Jordan, and James B. Early, Minnesota Attorney General's Office, MN, for Respondent.



This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Tony N. Leung dated October 27, 2014 [Doc. No. 30]. The R&R recommends denial of the Petition for Writ of Habeas Corpus [Doc. No. 1] and denial as moot of Petitioner's "Motion to Accept" [Doc. No. 26]. The R&R also recommends denial of a certificate of appealability [Doc. No. 30]. Petitioner filed timely objections to the R&R on November 10, 2014 [Doc. No. 31].

According to statute, the Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review, and for the reasons set forth below, the Court overrules Petitioner's Objections and adopts the R&R in full.


The Magistrate Judge's R&R thoroughly documents the complex factual and procedural background of this matter, and is incorporated herein by reference. In brief, Petitioner David Randy Sabby was prosecuted in three separate jurisdictions for alleged sexual contact with his underage step-daughter, A.H. Two of the jurisdictions are the Minnesota counties of Grant and Otter Tail; the third is the state of Georgia. In 2009, Sabby pled guilty in Grant County to third-degree criminal sexual assault under Minn. Stat. § 609.344, subd. 1(g)(iii), and it is this plea that he challenges in the instant Petition. He was thereafter sentenced to 41 months' imprisonment.

Also in 2009, Sabby entered an Alford plea to one count of first-degree criminal sexual conduct in Otter Tail County, with an agreement to a sentence of 144 months. He attempted to revoke that plea shortly after it was entered, because the plea included Sabby's understanding that any sentence he received in Georgia would be shorter than the sentence he received for the Otter Tail County charge, and the Georgia authorities had agreed to recommend a 20-year sentence, with 11 years' imprisonment. The Otter Tail County court declined to allow Sabby to withdraw from his plea and sentenced him to 144 months' imprisonment, to be served consecutively to the term imposed in Grant County. Sabby successfully challenged the plea-withdrawal decision in a postconviction motion, and the Minnesota Court of Appeals allowed him to withdraw his plea. According to Sabby, the Otter Tail County prosecution remains pending, but it appears from the Otter Tail County docket that the charges against Sabby pending in that court were dismissed in November 2014, after the appeals court allowed Sabby to withdraw his guilty plea. State v. Sabby, No. 56-CR-09-654 (Otter Tail County, Minn.).

In 2012, Sabby proceeded to trial in Georgia on charges including incest, statutory rape, aggravated child molestation, and child molestation. See Sabby v. State, No. A13-1588, 2014 WL 2013434, at *1 (Minn.Ct.App. May 19, 2014) (summarizing Georgia proceedings). He was convicted on all counts and ultimately sentenced to 80 years, with a minimum prison term of 60 years. He is currently appealing that conviction and sentence while remaining incarcerated in Georgia.

Sabby challenged his Grant County plea in two separate postconviction motions, but he was denied relief each time. He filed the instant § 2254 Petition on January 31, 2014.


Sabby raises multiple objections to the R&R; many of those objections stem from a misunderstanding about the federal courts' role in reviewing state criminal matters. Sabby contends that the R&R's analysis unreasonably applied federal law or was an unreasonable determination of the facts. (Obj. [Doc. No. 31] at 1; see also 28 U.S.C. § 2254(d).) But this is the standard by which a federal court reviews a state court's determinations; it is not the standard under which this Court reviews the Magistrate Judge's determinations. This Court's review of the R&R is de novo, which means that the Court looks at the record and determines for itself whether the state courts in Sabby's case either unreasonably applied Supreme Court precedent regarding federal law or unreasonably determined the facts in light of the evidence presented. Having reviewed the record, the Court agrees with the R&R that the state courts handling and reviewing Sabby's Grant County case did not misapply federal law or make any unreasonable factual determinations. The Court will discuss Sabby's objections in turn.

A. Rule 5

Sabby's first argument is that the Court should have granted his Petition merely because Respondent failed to comply with the filing requirements of Rule 5 of the Rules Governing Section 2254 in the United States District Courts. (R&R at 6 n.8.) But as Magistrate Judge Leung found, there was sufficient information in the record to allow the Court to discern the contents of the missing state-court briefing, and in any event, failure to comply with Rule 5's requirements is not procedural default, as Sabby contends. (Obj. at 2.) At most, Respondent's failure warranted an admonition from the Court, ...

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