United States District Court, D. South Dakota. Western Division.
ORDER OF DISMISSAL
JEFFREY L. VIKEN, Chief District Judge.
On May 20, 2013, petitioner Wade Elliot Bowles, appearing pro so, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket 1). Respondents moved to dismiss the petition, alleging Mr. Bowles did not properly file his petition within the one-year limitation period. (Docket 7). The case was referred to Magistrate Judge John E. Simko for resolution pursuant to the standing order of March 18, 2010. On January 7, 2014, Judge Simko issued a report recommending the court grant respondents' motion to dismiss and dismiss Mr. Bowles' petition with prejudice. (Docket 23 at p. 11). Mr. Bowles filed a motion for ruling on previous motions,  motion for appointment of counsel, and timely filed his objections to the report and recommendation. (Dockets 25, 28 & 29).
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). For the reasons stated below, Mr. Bowles' objections are overruled and the court adopts the report and recommendation.
Section 2254 of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), controls when a person in state custody pursuant to a state court judgment applies for a writ of habeas corpus in federal court "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. With the enactment of AEDPA, "a state prisoner seeking federal habeas corpus relief [is required] to file his federal petition within a year after his state conviction becomes final." Payne v. Kemna , 441 F.3d 570, 571 (8th Cir. 2006). This one-year statute of limitations is codified in 28 U.S.C. § 2244(d)(1) as follows:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or the laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
Mr. Bowles' objections assert the respondents "did not prove" the AEDPA timely filing requirements were not met. (Docket 29 at p. 1) (emphasis in original). A judgment or state conviction is final under § 2244(d)(1)(A) at either "(i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by 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." Smith v. Bowersox , 159 F.3d 345, 348 (8th Cir. 1998). The time allotted for filing a petition for writ of certiorari with the United States Supreme Court is ninety days. Jihad v. Hvass , 267 F.3d 803, 804 (8th Cir. 2001).
Giving Mr. Bowles the benefit of any doubt, the magistrate judge considered direct review of the state court judgment as final on February 22, 2010, ninety days after the South Dakota Supreme Court entered an order dismissing the direct appeal. Absent statutory or equitable tolling, Mr. Bowles had one year, or until February 23, 2011, to file a § 2254 petition in federal court. See 28 U.S.C. § 2244(d)(1)(A) & (d)(2).
Mr. Bowles' next state court proceeding did not occur until March 1, 2011, when he filed a motion for reduction of sentence. (Docket 23 at p. 4). By this time a total of 372 days had expired. Id . "State proceedings are not pending during the time between the end of direct review and the date an application for state [post-conviction relief] is filed." Maghee v. Ault , 410 F.3d 473, 475 (8th Cir. 2005). By March 1, 2011, the one-year statute of limitations of AEDPA expired. The court ...