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Readd v. Dooley

United States District Court, D. South Dakota, Western Division

February 26, 2015

MICHAEL READD, Petitioner,
v.
WARDEN ROBERT DOOLEY, MIKE DURFEE STATE PRISON, AND MARTY JACKLEY, SOUTH DAKOTA STATES ATTORNEY GENERAL, Respondents.

ORDER

VERONICA L. DUFFY, Magistrate Judge.

INTRODCUTION

Petitioner, Michael Readd, ("Readd") an inmate at the Mike Durfee State Prison, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 and has paid the $5.00 filing fee.

JURISDICTION

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.

BACKGROUND

Readd was convicted on May 7, 2012, on five counts of aggravated incest. He was sentenced to seventy-five years' imprisonment. Readd filed a direct appeal to the South Dakota Supreme Court. Readd's petition indicates his direct appeal was filed on May 30, 2012, and that the South Dakota Supreme Court denied his direct appeal. It is unclear, however, when the South Dakota Supreme Court dismissed Readd's direct appeal. He did not file a petition for certiorari to the United States Supreme Court. Readd filed his state habeas corpus petition on September 23, 2013. The state habeas petition was denied by the state circuit court without a hearing in May, 2014. The South Dakota Supreme Court denied Readd's state habeas petition in June, 2014.

Readd initially filed his federal habeas corpus petition on December 16, 2014. See Docket 1. Thereafter, the Court ordered Readd to more fully complete the standard § 2254 form which is regularly provided to prisoners in the state of South Dakota. See Docket 8. Readd re-submitted his § 2254 petition on February 19, 2015. See Docket 10.

Because Readd has indicated he is unaware of the date his direct appeal was dismissed, it is impossible to determine with certainty whether this federal § 2254 petition is timely under the AEDPA one year statute of limitations. On page 2 of Docket 10, however, under "Timeliness of Petition, " Readd has acknowledged "my petition is late..."

DISCUSSION

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 ...

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