United States District Court, D. South Dakota, Southern Division
VERONICA L. DUFFY United States Magistrate Judge
Petitioner, Tod Allen Wilkinson, 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.
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. Wilkinson was convicted at trial of various drug related offenses and sentenced on October 12, 2006. He filed a direct appeal and the South Dakota Supreme Court affirmed his conviction on July 25, 2007. Mr. Wilkinson did not appeal to the United States Supreme Court. Therefore, his conviction became final on October 23, 2007. Over three years later, on March 17, 2011, Mr. Wilkinson filed his first state habeas petition. The state circuit court denied the petition and on February 22, 2016, the South Dakota Supreme Court affirmed. Mr. Wilkinson filed this federal habeas corpus petition on April 7, 2016.
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. Wilkinson’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. ...