United States District Court, D. South Dakota, Western Division
SHAUN A. WHITECALF, Plaintiff,
WARDEN DARIN YOUNG, SO. DAKOTA STATE PENITENTIARY; AND THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Defendants.
VERONICA L. DUFFY, Magistrate Judge.
Petitioner, Shaun A. Whitecalf, ("Whitecalf") an inmate at the South Dakota State Penitentiary, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and has paid the $5.00 filing fee.
The pending matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Viken's Standing Order dated October 16, 2014.
Whitecalf was convicted (pursuant to a plea agreement) on November 5, 2012, of First Degree Rape. He was sentenced to twenty-five years' imprisonment with ten years suspended. Whitecalf did not file a direct appeal to the South Dakota Supreme Court. He did not file a petition for certiorari to the United States Supreme Court. Whitecalf filed his state habeas corpus petition on July 12, 2013. The state habeas petition was denied by the state circuit court without a hearing, but Whitecalf's § 2254 papers do not specify the date on which the state circuit court dismissed his state habeas petition. Whitecalf did not seek review of the state circuit court's dismissal of his state habeas petition from the South Dakota Supreme Court. Thereafter, Whitecalf filed this federal habeas petition pursuant to 28 U.S.C. § 2254 on October 15, 2014.
A. Rule 4
Rule 4 of the Rules Governing Section 2254 Cases states in pertinent part:
The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion or other response within a fixed time, or to take other action the judge may order...
This Court's preliminary review, required by Rule 4, reveals that Whitecalf's pending § 2254 petition may be unexhausted and/or barred by the AEDPA statute of limitations.
B. The AEDPA Exhaustion Requirement
South Dakota law provides an avenue for habeas corpus relief. See SDCL Chapter 21. Prisoners may file their petitions first in the Circuit Court where their conviction occurred (SDCL § 21-27-14.1). The South Dakota Supreme Court reviews final state habeas judgments or orders upon the issuance of a certificate of probable cause. See SDCL § 21-27-18.1. If no certificate of probable cause is issued by the Circuit Court, the prisoner may file a ...