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Setzer v. Weber

August 26, 2010

JERRY L. SETZER, PETITIONER,
v.
DOUGLAS L. WEBER, WARDEN FOR SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER

INTRODUCTION

Petitioner, a prisoner at the South Dakota State Penitentiary, filed a petition for writ of habeas corpus (Docket 1) under 28 U.S.C. § 2254. The petition was referred to United States Magistrate Judge Veronica Duffy for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On November 18, 2009, Magistrate Judge Duffy issued an order to show cause (Docket 12) requiring the parties to submit legal authority as to whether the petition should be dismissed due to the expiration of the one-year statute of limitations under 28 U.S.C. § 2244(d)(1), the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Mr. Setzer submitted his response (Docket 18) and Respondent Weber filed a motion to dismiss petitioner's application for writ of habeas corpus (Docket 21). Magistrate Judge Duffy filed her report and recommendation (Docket 26) recommending the petition be dismissed as time barred under 28 U.S.C. § 2244(d)(1). Mr. Setzer timely filed his objections. (Docket 28). The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The matter is now ripe for decision.

DISCUSSION

A. Magistrate Judge's Findings of Fact

Mr. Setzer's only factual objection is that his staph infection started in October or November of 2001 and ended in 2005. (Docket 28, p. 1). Magistrate Judge Duffy found that Mr. Setzer suffered from a staph infection beginning in October or November of 2001, which required a partial amputation of his right leg. (Docket 26, p. 5). Magistrate Judge Duffy also found that "[b]y his own admission, Mr. Setzer's condition... lasted until 2003." Id. at p. 6.

The court finds that Mr. Setzer's own statements are consistent with the finding of the magistrate judge. In his own handwritten words, Mr. Setzer represented to Magistrate Judge Duffy the following:

In October or November of 2001 I obtained staff infection in my right toe. I had to have surgery but it only became worse. Month after month I stayed in the hospitals having surgery after surgery. On April 22, 02, they cut my leg off below the knee thinking that would end the staff infection. But it didn't and begin coming up my thigh to my hip. I stayed in the hospital for six months at a time.... I was having 2 and 3 surgerys a week to wash my thigh out. Finally, I was release in 2003 and I was sent back to prison. (Docket 20). His physical condition then allowed him to participate in the state habeas evidentiary hearing on December 23, 2003. Id. The objection is overruled and the findings of fact of the magistrate judge are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).

B. Magistrate Judge's Conclusions of Law

Mr. Setzer's vague objection to the conclusions of law of Magistrate Judge Duffy is basically that he could not have pursued his state habeas petition because of his health. (Docket 28, p. 2). This objection is overruled and the conclusions of law of the magistrate judge are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C) for the following reasons.

This is the third federal habeas proceeding on Mr. Setzer's claims:

1. 5:06-5103-KES;

2. 5:07-5044-RHB; and

3. ...


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