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Salamo v. Young

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

December 15, 2016

JESUS SALAMO, Petitioner,
v.
DARIN YOUNG, MARTY JACKLEY, Attorney General of the State of South Dakota, Respondents.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Petitioner, 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.

         BACKGROUND

         On 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.

         Salamo 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 habeas petition.

         Salamo 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.

         Magistrate 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.

         Magistrate 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.

         Salamo 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.

         STANDARD OF REVIEW

         The 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. 1994).

         DISCUSSION

         Salamo's 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. ...


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