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Mokros v. Dooley

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

February 17, 2016

CALVIN GERALD MOKROS, Petitioner,
v.
ROBERT DOOLEY, Warden; and MARTY JACKLEY, Attorney General of the State of South Dakota, Respondents.

OPINION AND ORDER GRANTING RESPONDENTS' MOTION TO DISMISS

ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

Petitioner, Calvin Gerald Mokros ("Mokros"), filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Mokros also moved for a hearing on his petition. Doc. 1-1 at 7; Doc. 11 at 4. Robert Dooley ("Dooley"), Warden of Mike Durfee State Prison, and Marty Jackley, Attorney General of the State of South Dakota (collectively "Respondents") moved to dismiss Mokros's petition, arguing that the petition is time-barred under the Antiterrorism and Effective Death Penalty Act (AEDPA). Doc. 7. Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court has determined that an evidentiary hearing is not warranted. For the reasons explained below, Respondents' motion to dismiss is granted because Mokros's petition is barred by AEDPA's one-year statute of limitations.

I. PROCEDURAL BACKGROUND

On April 19, 2010, Mokros pleaded guilty to driving while under the influence of alcohol ("DUI") in violation of South Dakota Codified Laws ("SDCL") § 32-23-1 and admitted to a Part II DUI Fifth Offense Information. Doc. 1-1 at 9. Second Judicial Circuit Judge Peter H. Lieberman sentenced Mokros to ten years imprisonment, giving credit for forty-two days previously served with three years suspended, and ordered Mokros pay blood testing fees. Doc. 1-1 at 9. Judge Lieberman's Judgment and Sentence was signed and filed on May 17, 2010. Doc. 1-1 at 10. Mokros did not file a direct appeal with the Supreme Court of South Dakota. Doc. 8 at 2.

More than four years later, Mokros filed a Petition for Writ of Habeas Corpus against Dooley in state court on May 28, 2014. Doc. 8-2. In that petition, Mokros alleged that Judge Lieberman did not advise him of his rights associated with the Part II Information and that his due process rights were violated when his admission to the Part II Information was improperly accepted.[1] Doc. 8-2. Dooley filed a motion to dismiss the petition and on October 23, 2014, Second Judicial Circuit Judge Patricia C. Riepel held a hearing on the motion. Doc. 8-3. After reviewing the record and considering arguments from Mokros's and Dooley's counsel, Judge Riepel filed an order granting Dooley's motion to dismiss on November 14, 2014.[2] Doc. 8-3. Thereafter, on December 22, 2014, Mokros moved for a certificate for probable cause to appeal Judge Riepel's dismissal. Doc. 8-4. Judge Riepel denied the motion, finding no reason to change prior findings, and an order was filed that same day.[3] Doc. 8-5. Mokros then filed a motion for certificate of probable cause with the Supreme Court of South Dakota on January 15, 2015. Doc. 8-6. Chief Justice David Gilbertson dismissed Mokros's motion on January 21, 2015 because it was untimely filed under SDCL § 21-27-18.1. Doc. 8-7.

Mokros then filed a habeas petition with this Court on May 15, 2015. Doc. 1. Mokros alleges that he was denied a fair trial, that his due process rights were violated, that he was not adequately provided the Part II Information before entering his admission, that Judge Lieberman wrongly advocated for the state prosecutor by failing to provide a hearing on the Part II Information, and that the state court lacked jurisdiction to sentence him on a felony. Doc. 1 at 5-6. After screening, this Court directed service of all pleadings on Respondents. Doc. 5. Respondents thereafter filed a motion to dismiss and a supporting brief, requesting dismissal of Mokros's habeas petition as not properly filed within AEDPA's applicable one-year limitation period. Docs. 7, 8. Mokros responded and opposed the motion. Docs. 10, 11.

II. DISCUSSION

A. Statute of Limitations

A person in custody pursuant to a state court judgment may petition a federal district court for a writ of habeas corpus on the ground that he or she is in custody in violation of the United States Constitution or federal law. 28 U.S.C. § 2254. Mokros's petition was filed after the enactment of AEDPA, and therefore AEDPA applies to this petition. Doc. 1; Ryan v. Clarke, 387 F.3d 785, 789 (8th Cir. 2004). Under AEDPA, a petition for writ of habeas corpus must be filed within one year, which, absent circumstances not present in this case, begins to run from:

(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; [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)(A), (D).

The statute of limitations on Mokros's claims began to run under § 2244(d)(1)(A) when his state judgment became final because § 2244(d)(1)(D) does not apply to any of Mokros's claims. Under the section titled "Exhaustion of state court remedies" in Mokros's habeas petition, Mokros appears to invoke § 2244(d)(1)(D) by tersely stating, without detail, that "the factual predicate of my claim was discovered on and after February 6, 2015, to which Jurisdictional issues are not barred by time limits and can be raised at any time and in any court." Doc. 1 at 5. The factual predicates for Mokros's claims, however, were apparent at the time he entered his admission and guilty plea, and he needed no additional time to uncover the factual predicates for those claims. Additionally, there is little merit to Mokros's allegation that the factual predicate of his claim was discovered "on and after February 6, 2015" because Mokros filed his state habeas petition on May 28, 2014, which challenged at least one of the same claims presented in his federal habeas petition. Doc. 8-2. Thus, § 2244(d)(1)(A), and not § 2244(d)(1)(D), governs the application of the one-year statute of limitations to Mokros's claims. See Manning v. Epps, 688 F.3d 177, 189-90 (5th Cir. 2012).

Mokros's judgment of conviction was signed and filed on May 17, 2010. Doc. 1-1 at 10. Mokros then had thirty days, or until close of business on June 16, 2010, to file a direct appeal. SDCL § 23A-32-15 ("An appeal from the judgment must be taken within thirty days after the judgment is signed, attested, and filed."); id § 15-6-6(a) (noting procedure to compute time). Mokros chose not to file a direct appeal. Thus, the state judgment became final on June 16, 2010, and the one-year statute of limitations began to run on June 17, 2010. Gonzalez v. Thaler, 132 S.Ct. 641, 646, 656 (2012) ("We hold that, for a state prisoner who does not seek review in a State's highest court, the judgment becomes 'final' on the date that the time for seeking such review expires."); see also Fed.R.Civ.P. 6(a)(1)(A) (providing exclusion of "the day of the event that triggers the [time] period"); Wright v. Norris. 299 F.3d 926, 927 n.2 (8th Cir. 2002) (noting Federal Rule of Civil Procedure 6(a) "governs the calculation of AEDPA time ...


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