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Dumarce v. Weber

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

July 15, 2016

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

          Marlon Troy DuMarce, Petitioner, Pro Se.

          Douglas Weber, Respondent, represented by Sherri Sundem Wald, Attorney General of South Dakota.

          Marty Jackley, Respondent, represented by Sherri Sundem Wald, Attorney General of South Dakota.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY, Magistrate Judge.

         INTRODUCTION

         This matter is before the court on Marlon Troy Dumarce's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Dumarce is currently incarcerated at the Roberts County Jail in Sisseton, South Dakota. Pending is a motion to dismiss filed by respondents. See Docket No. 12. This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Judge. This court recommends Mr. Dumarce's petition be dismissed and respondents' motion be granted.

         FACTS

         On March 2, 2006, Mr. Dumarce pled guilty to one count of unauthorized possession of a controlled substance in Roberts County, South Dakota, and was sentenced to 10 years' imprisonment with three years suspended. Docket 14-1. His judgment of conviction was filed on March 7, 2006. Docket 14-1. Mr. Dumarce filed a direct appeal but subsequently voluntarily dismissed it. Docket 14-2, 14-3, 14-4. On May 2, 2006, the South Dakota Supreme Court entered its order dismissing the appeal. Docket 14-5.

         On February 16, 2007, Mr. Dumarce filed a state habeas petition. Docket 14-6. Counsel was appointed that same day to represent him. Docket 14-7. As with his direct appeal, Mr. Dumarce later sought to have his petition dismissed stating there was "no merit for my case." Docket 14-8. His counsel filed a motion to dismiss on February 20, 2008. Docket 14-11. The circuit court dismissed the state habeas case on March 25, 2008. Docket 14-15.

         During this same time frame, Mr. Dumarce also sought a sentencing modification, which he filed February 20, 2008. Docket 14-9, 14-12. The circuit court issued an order granting a modification of Mr. Dumarce's sentence on May 20, 2008. Docket 14-14. Mr. Dumarce did not appeal from this decision. The time for appealing is 30 days.

         Five years later, on July 15, 2013, Mr. Dumarce filed his second state habeas petition.[1] Docket 14-18. Attorney Thomas J. Cogley filed an amended petition on January 31, 2014. Docket 14-19. An evidentiary hearing was held on April 14, 2014. On July 2, 2014, an order denying habeas relief was entered. Docket 14-20. Mr. Dumarce's request for a certificate of probable cause was also denied. Docket 14-21, 14-22. On May 22, 2015, the South Dakota Supreme Court also denied a certificate of probable cause. Docket 14-23.

         Mr. Dumarce then filed the instant federal petition in this court on March 3, 2016.[2] Docket 1. This court issued an order directing both parties to file pleadings addressing whether Mr. Dumarce's federal petition was timely. Docket No. 5. Mr. Dumarce filed three briefs in support of his petition. Docket Nos. 6, 11 and 15. Respondents now move the court to dismiss Mr. Dumarce's federal petition on the grounds that it is untimely. Docket Nos. 11 & 14.

         DISCUSSION

         A. AEDPA ...


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