United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER UNITED STATES DISTRICT JUDGE
Jesus Salamo, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. The petition was assigned
to United States Magistrate Judge Veronica L. Duffy under 28
U.S.C. § 636(b)(1)(B) and this court's October 16,
2014, standing order. On July 15, 2016, Magistrate Judge
Duffy submitted her report and recommendation for disposition
of this case to the court. Salamo objected to Magistrate
Judge Duffy's report and recommendation on August 3,
2016. For the following reasons, the court adopts and
modifies Magistrate Judge Duffy's report and
recommendation and dismisses Salamo's petition.
November 4, 2004, Salamo was convicted of six offenses by a
jury: (1) aggravated assault, domestic violence; (2)
aggravated assault; (3) violation of a protection order; (4)
intentional damage to private property; (5) kidnapping; and
(6) violation of protection order. Six separate judgments of
conviction were entered on December 17, 2004. Salamo filed a
direct appeal and on September 6, 2005, the South Dakota
Supreme Court affirmed his conviction.
filed a state habeas action on September 25, 2006. An
evidentiary hearing was held on August 16, 2013. An order
denying Salamo's habeas petition was entered on November
26, 2014, with notice of entry of that decision being filed
on December 8, 2014. Salamo did not request a certificate of
probable cause nor did he appeal the denial of his state
filed the instant federal petition in this court on February
20, 2016. Docket 1. In his petition, Salamo raised four
grounds all alleging violations of his rights under the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. Id. at 6-11. Salamo acknowledged in
his habeas petition that only two of these grounds, grounds
one and two, were raised in his state habeas action.
Id. at 9-11.
Judge Duffy issued an order directing Salamo and respondents
to file documents addressing whether Salamo's federal
petition was timely. Docket 5 at 6. Respondents complied with
this order by moving for the court to dismiss Salamo's
federal petition because the petition is untimely and because
equitable tolling does not apply to toll the petition. Docket
6. Salamo did not file a response to the respondents'
motion or to Magistrate Judge Duffy's order to show
cause. Docket 8 at 6-7.
Judge Duffy recommends that this court grant respondents'
motion to dismiss Salamo's petition with prejudice.
Id. at 7. Magistrate Judge Duffy found that
Salamo's one-year statute of limitation for filing a writ
of habeas corpus under 28 U.S.C. § 2244, as amended by
the Antiterrorism and Effective Death Penalty Act (AEDPA),
had expired. Docket 8 at 5-6. In total, Magistrate Judge
Duffy found that Salamo missed his one-year AEDPA deadline by
733 days. Id. at 6.
objected to Magistrate Judge Duffy's report and
recommendation on August 3, 2016. Docket 9. Salamo filed
additional materials on October 21, 2016. Docket 11; Docket
11-1. These materials included a handwritten letter in
Spanish and other handwritten comments in Spanish.
See Docket 11; Docket 11-1 at 1. The Clerk of Courts
directed Salamo to translate these documents into English if
he wished the court to consider them. Docket 12. Because the
documents were never translated, the court has not considered
the portions in Spanish.
court's review of a Magistrate Judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. The court reviews
de novo any objections to the magistrate judge's
recommendations with respect to dispositive matters that are
timely made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). In conducting its de novo review, this
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);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.
objections to Magistrate Judge Duffy's report and
recommendation appear to argue that he is entitled to
equitable tolling of the AEDPA statute of limitations because
both his state trial counsel and his state habeas counsel
provided him with ineffective assistance. See Docket
9. Given Salamo's objection to the report and
recommendation, the court will first examine the requirements
for equitable tolling of the AEDPA statute of limitations.