United States District Court, D. South Dakota, Southern Division
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
Petitioner, Donald Loren Anderson (“Mr. Anderson”) an inmate at the Mike Durfee State Prison in Springfield, South Dakota, 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 Schreier's Standing Order dated October 16, 2014.
Mr. Anderson was convicted in a jury trial of sexual contact with a child under the age of 16. The trial court sentenced him to 10 years in the penitentiary and required him to register as a sex offender. Mr. Anderson appealed and the South Dakota Supreme Court affirmed his conviction on May 8, 2013.
Thereafter, Mr. Anderson filed a state habeas petition, but the record is unclear as to when. The South Dakota Supreme Court denied Anderson’s motion for certificate of probable cause on that state habeas petition on June 12, 2014. Anderson filed this federal habeas corpus petition on May 28, 2015.
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 Anderson’s pending § 2254 petition may be barred ...