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Williams v. Young

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

September 29, 2016

DARIN YOUNG, Warden; and MARTY JACKLEY, Attorney General of the State of South Dakota, Respondents.


          Lawrence L. Piersol United States District Judge.

         Petitioner Frank Allen Williams, an inmate at Oak Park Heights Minnesota Correction Facility, has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Duffy issued a Report and Recommendation recommending that the Petition be dismissed with prejudice for the reason that it was not timely filed. Petitioner Williams objects to the Report and Recommendation from Magistrate Judge Duffy and asks that there be equitable tolling in his case thus allowing his Petition to go forward.


         To begin with, the Report and Recommendation concludes that the Eighth Circuit case of Williams v. Bruton, 299 F.3d 981 (8th Cir. 2002) and Streu v. Dormire, 557 F.3d 960 (8th Cir. 2009) are not sound authority because they do not take into account the United States Supreme Court's opinions in Evans v. Chavis, 546 U.S. 189 (2006) and Lawrence v. Florida, 549 U.S. 327 (2007). After taking that position, the Report and Recommendation concludes that Petitioner Williams does not get the benefit of the twenty (20) day period during which he would have, but did not, seek a certificate of probable cause from the South Dakota Supreme Court. Had Mr. Williams been given the benefit of that twenty (20) day period, then his Petition would have been timely filed. The Sixth and Second Circuits concluded that Williams and Streu are distinguishable because they did not take into account the Supreme Court opinions of Evans and Lawrence.

         In Scarber v. Palmer, 808 F.3d 1093 (6th Cir. 2015)(Rehearing En Banc denied 2016), a prisoner had a three week period in which he had an opportunity to file a motion for reconsideration of an order denying leave for further appeal from denial of state collateral relief. The prisoner did not file the motion. The Sixth Circuit held that the time for filing a petition for federal habeas relief was not tolled during that three week period and the petition was dismissed as untimely. In its opinion, the Sixth Circuit at 1097 neatly categorized which circuits did and did not agree with the holding:

Several of our sister circuits agree. See Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir. 2009). Most of those that do not agree rely on precedents that predate the Court's delineations of § 2244(d)(2) in Pace, Carey, Evans, and Lawrence. See, e.g. Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 n. 4 (3d Cir. 2013) (quoting Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000)); Santini v. Clements, 498 Fed.. Appx. 807, 809 (10th Cir. 2012) (citing Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir. 2004)); Escalante v. Watson, 48'8 Fed.Appx. 694, 702 (4th Cir. 2012) (Davis, J., dissenting) (quoting Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999)); Drew v. MacEachern, 620 F.3d 16, 21 (1st Cir. 2010) (quoting Currie v. Matesanz, 281 F.3d 261, 263 (1st Cir. 2002)); Streu v. Domire, 557 F.3d 960, 966 (8th Cir. 2009) (citing Williams v. Bruton, 299 F.3d 981 (8th Cir. 2002)); Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001).

Id. at 1097.

         The briefs in Streu v. Dormire, the 2009 Eighth Circuit case, do not cite to either Evans or Lawrence. If Streu is followed by this Court, then the Petition would be timely. If Evans or Lawrence is followed, the Petition would not be timely. This Court agrees that Streu is, without mentioning Evans or Lawrence, contrary to those opinions in its reliance upon Williams from the Eighth Circuit, which predates both Evans and Lawrence. So, what should a District Court do? Not follow applicable Eighth Circuit precedent as is recommended in the Report and Recommendation or apply Eighth Circuit precedent until that precedent is overruled by the Eighth Circuit sitting en banc, or by the Supreme Court, or by Congress? Both the Eighth Circuit and the Supreme Court have answered that question. Each Court reserves the prerogative of overruling its own decisions. In Rodriguezde Quijas v. Shearson/American Express, Inc., 490U.S. 477, 484, 109S.Ct. 1917, 104 L.Ed.2d 526 (1989) the Supreme Court stated:

We do not suggest that the Court of Appeals on its own authority should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

Id. at 1921.

         Likewise in MM. ex rel. v. Special School Dist. No. I, 512 F.3d 455 (8th Cir. 2008), the Court stated:

The district court noted but declined to follow our decision in Renollett, concluding "that a close reading of Schaffer . . . does not support the IDEA'S preemption of Minnesota law on this point." MM., 2006 WL 2571229 at * 15. This was fundamental error. Our decision in Renollett is controlling until overruled by our court en banc, by the Supreme Court, or by Congress. Though the district court described our discusion of the issue as "cursory, " our opinion in Renollett cited the page in Schaffer that left the question open, and we then decided the question for the courts of this circuit.

         As a result, this Court applies the Eighth Circuit precedent of Streu, supra, and the Petition is timely.

         EQUITABLE ...

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