United States District Court, D. South Dakota, Southern Division
Lawrence L. Piersol United States District Judge.
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.
PRECEDENT TO FOLLOW
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.
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.
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
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
Id. at 1921.
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.
result, this Court applies the Eighth Circuit precedent of
Streu, supra, and the Petition is timely.