United States District Court, D. South Dakota, Western Division
ORDER FOR BRIEFS
VERONICA L. DUFFY, Magistrate Judge.
Petitioner Christopher Hatchett filed the pending pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 8, 2014. Docket 1. On November 12, 2014, a Report and Recommendation was filed recommending the petition be dismissed without prejudice for petitioner's failure to exhaust his state court remedies. Specifically, Mr. Hatchett had not sought a certificate of probable cause from the South Dakota Supreme Court. Before the district court ruled on this court's recommendation, Petitioner filed a motion for certificate of probable cause with the South Dakota Supreme Court on December 29, 2014. The South Dakota Supreme Court dismissed the motion on January 7, 2015. Docket 13-1.
Thereafter, on May 14, 2015, the Honorable Jeffrey L. Viken, Chief Judge, found Petitioner exhausted his state remedies as of the date of the South Dakota Supreme Court order. The district court then remanded this case to this magistrate judge for a determination as to whether the petition for writ of habeas corpus is timely pursuant to 28 U.S.C. § 2244(d)(1) and for further appropriate proceedings. Docket 14.
A. AEDPA Statute of Limitations
The AEDPA contains a one year statute of limitations. Specifically, 28 U.S.C. § 2244(d) provides in relevant part:
(d) (1) A 1-year period of limitation shall apply to an application for 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 the Constitution or 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;
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...