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DuMarce v. Weber

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

March 11, 2016

MARLON TROY DUMARCE, Petitioner,
v.
DOUGLAS WEBER, WARDEN; and MARTY JACKLEY, ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.

ORDER

VERONICA L. DUFFY United States Magistrate Judge

INTRODUCTION

Petitioner, Marlon Troy Dumarce, an inmate at the Roberts County Jail in Sisseton, South Dakota, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C.§2254.

JURISDICTION

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.

BACKGROUND

Mr. Dumarce’s petition is less than clear as to the time frames for his conviction, appeal and state habeas proceedings. He states he pleaded guilty to possession of a controlled substance by ingestion and was sentenced in March 2005, to 10 years in the state penitentiary with 3 years suspended. Mr. Dumarce indicated he filed a direct appeal to the South Dakota Supreme Court as well as a state habeas petition but lists the disposition date of each as May 22, 2015 - 10 years after his original conviction. Mr. Dumarce filed this federal habeas corpus petition on March 9, 2016.

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 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 Mr. Dumarce’s pending § 2254 petition may be barred by the AEDPA statute of limitations.

B. AEDPA Statute of Limitations

Petitions for habeas relief in federal court collaterally attacking state court convictions are governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA contains a one-year statute of limitations. ...


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