United States District Court, D. South Dakota, Central Division
ORDER GRANTING MOTION TO DISMISS
ROBERTO A. LANGE DISTRICT JUDGE
February 16, 2016, Petitioner Dwight Stulken
("Stulken") filed a Petition for Writ of Habeas
Corpus by a Person in State Custody Pursuant to 28 U.S.C.
§ 2254. Doc. 1. Respondent moves to dismiss
Stulken's petition. Doc. 5. For the reasons below,
respondent's motion is granted and Stulken's petition
December 6, 2010, Stulken pled guilty to one count of First
Degree Rape in a circuit court of South Dakota and was
sentenced to 100 years in prison. Doc. 6-1. The South Dakota
Supreme Court affirmed the judgment of the circuit court on
direct appeal. Doc. 6-2. On March 13, 2013, Stulken moved for
a hearing to modify or reduce his sentence, Doc. 6-3, but the
circuit court denied his motion. Doc. 6-4. On January 31,
2014, Stulken filed a petition seeking habeas relief in state
court. Doc. 6-5. The circuit court denied his petition. Doc.
6-7. Stulken applied for a certificate of probable cause,
first in the circuit court and then the South Dakota Supreme
Court, but was denied by both courts. Doc. 6-9; Doc. 6-11.
February 16, 2016, Stulken filed a Petition for Writ of
Habeas Corpus in this Court. Doc. 1. Respondent moves to
dismiss, arguing that Stulken's petition is time barred.
Doc. 5. Stulken responded, arguing that he is entitled to
equitable tolling, his petition is therefore not time barred,
and it should be decided on the merits. Doc. 7.
Statute of Limitations
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. Stulken's petition was filed after the
enactment of the Antiterrorism and Effective Death Penalty
Act (AEDPA), and therefore AEDPA applies to this petition.
Doc. 1; Ryan v. Clarke, 387 F.3d 785, 789 (8th Cir.
2004). Under AEDPA, a 1-year period of limitation applies to
habeas applications under § 2254. 28 U.S.C.A. §
argue that Stulken's 1-year AEDPA statute of limitations
has run. Doc. 7. Stulken does not rebut this argument. In his
response, he only claims that he is entitled to equitable
tolling, and the Court should decide the merits of his
petition. Doc. 7.
United States Supreme Court has held "that §
2244(d) is subject to equitable tolling in appropriate
cases." Holland v. Florida, 560 U.S. 631, 645
(2010). " 'Generally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstances stood in his way.'
" Deroo v. United States, 709 F.3d 1242, 1246
(8th Cir. 2013) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). Stulken does not establish either
element and makes no attempt to do so. Instead, he argues
that the state should not be able to raise the statute of
cites Wood v. Milyard, 132 S.Ct. 1826 (2012), in
support of his argument. Wood concerned "the
authority of a federal court to raise, on its own motion, a
statute of limitations defense to a habeas corpus
petition." Id. at 1829. In Wood, the
state informed the United States District Court that it would
not challenge the timeliness of Woods' petition.
Id. After the district court denied Woods'
petition on the merits, the Tenth Circuit affirmed the denial
but only on the grounds that Woods' petition was
Supreme Court held that the Tenth Circuit erred. Id.
at 1830. The Court found that the state had waived the
timeliness issue, describing this waiver as "the
'intentional relinquishment or abandonment of a known
right.' " Id. at 1835 (quoting Kontrick
v. Ryan, 540 U.S. 443, 458, n.13 (2004)). Because the
state waived the issue in the district court, it was error
for the appellate court to resurrect the issue. Id.
is inapplicable to Stulken's petition. Unlike in
Wood, the state here has not affirmatively waived
the statute of limitations defense. The state has not waived
the defense at all. Also, the Court in Wood
extensively discussed the relationship between trial and
appellate courts, citing restraint from entertaining issues
not raised and preserved in the trial court and "regard
for the trial court's processes and time investment"
as "relevant considerations" to its decision that
the appellate court erred. Id. at 1834. These
considerations are inapplicable to ...