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Readd v. Dooley

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

July 14, 2016

MICHAEL READD, Petitioner,
v.
WARDEN ROBERT DOOLEY, Mike Durfee State Prison, and MARTY JACKLEY, Attorney General of the State of South Dakota, Respondents.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         On December 18, 2014, petitioner Michael Readd, an inmate at the Michael Durfee State Prison in Springfield, South Dakota, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket 1). Pursuant to a standing order of October 14, 2014, the matter was referred to United States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). On February 5, 2015, Judge Duffy filed an order directing Mr. Readd to file his § 2254 case on a standard § 2254 petition provided by the Clerk of Court. (Docket 8 at p. 4). On February 23, 2015, Mr. Readd filed an amended petition. (Docket 10). On February 26, 2015, Magistrate Judge Duffy directed service of Mr. Readd’s petitions on the respondents and required the parties on or before March 27, 2015, to show cause why Mr. Readd’s federal petition “should not be dismissed as untimely pursuant to 28 U.S.C. §2244(d)(1).” (Docket 11 at p. 6). On March 9, 2015, Mr. Readd filed a brief in support of his argument as to why his federal petition should not be dismissed as untimely. (Docket 14). On March 25, 2015, the respondents filed their response urging the magistrate judge to dismiss Mr. Readd’s petition “with prejudice for untimeliness.” (Docket 12 at p. 13). On November 19, 2015, the respondents filed a motion seeking dismissal of Mr. Readd’s petition “for failure to abide by the statute of limitations . . . 28 U.S.C. § 2244(d).” (Docket 19). The motion to dismiss incorporated the respondents’ March 25, 2015, arguments. Id.

         On November 24, 2015, Judge Duffy issued an amended report recommending the court grant the respondents’ motion to dismiss. (Docket 22). Pursuant to 28 U.S.C. § 636(b)(1), objections to the amended report and recommendation were due on or before December 15, 2015. Mr. Readd timely filed his objections. (Docket 24). Mr. Readd separately filed a response to the respondents’ motion to dismiss. (Docket 23).

         The court reviews de novo those portions of the amended report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Mr. Readd’s objections are overruled and the amended report and recommendation is adopted in full.

         PETITIONER’S OBJECTIONS

         Mr. Readd’s objections to the amended report and recommendation are summarized as follows:

1. The statute of limitations issue was resolved by the court in March 2015;
2. The statute of limitations does not expire until May 2016;
3. Under the federal rules there is no statute of limitations for correction of an illegal sentence; and
4. The report and recommendation is premature.

(Docket 24). Within petitioner’s objections he made a number of other arguments which can be resolved by the court’s analysis of his objections. Each objection will be separate analyzed.

         1. THE STATUTE OF LIMITATIONS ISSUE WAS RESOLVED BY THE COURT IN MARCH 2015

         Mr. Readd claims the magistrate judge “already visited this issue in March 2015.” Id. at p. 1. This statement is partially correct, but incomplete. On February 26, 2015, the magistrate judge sua sponte raised the question of whether the statute of limitation under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) bars Mr. Readd’s federal habeas petition. By the magistrate judge’s “preliminary review . . . Readd’s pending § 2254 petition may be barred by the AEDPA statute of limitations.” (Docket 11 at p. 3).

         The AEDPA statute of limitations is set out in 28 U.S.C. § 2244 which provides in pertinent 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 ...

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