United States District Court, D. South Dakota, Southern Division
VERONICA L. DUFFY United States Magistrate Judge.
Robert Merle Pratt, an inmate at the Mike Durfee State Prison
in Springfield, South Dakota, submitted a document titled
“Notice of Motion to Vacate Dismissal on Grounds Due to
Attorney Abandonment, Rule 60(b)(6).” The document was
filed as a new habeas action pursuant to 28 U.S.C. §
2254. However, it appears that Mr. Pratt may instead be
seeking to reopen his 1997 habeas case. See Civ.
97-4246. In that case, Mr. Pratt challenged his 1992
conviction for first degree manslaughter for which he
received a 100 year sentence of imprisonment.
for habeas relief in federal court collaterally attacking
state court convictions are governed by the Antiterrorism and
Effective Death Penalty Act (AEDPA). AEDPA contains a
one-year statute of limitations. Specifically, 28 U.S.C.
§ 2244(d) provides in relevant part:
(d) (1) A 1-year period of limitation shall
apply to an application for writ of habeas corpus by a person
in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of C
(A) the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to
filing an application created by State action in violation
the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional
right asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
(D) the date on which the factual predicate
of the claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation
under this subsection.
See 28 U.S.C. § 2244(d)(1) and (2).
judgment or state conviction is final, for purposes of
commencing the statute of limitation period, at ''(1)
either the conclusion of all direct criminal appeals in the
state system, followed by either the completion or denial of
certiorari proceedings before the United States Supreme
Court; or (2) if certiorari was not sought, then by the
conclusion of all direct criminal appeals in the state system
followed by the expiration of the time allotted for filing a
petition for the writ.'' Smith v. Bowersox,
159 F.3d 345, 348 (8th Cir. 1998). The time allotted for
filing a petition for writ of certiorari with the Supreme
Court is ninety days. Jihad v. Hvass, 267 F.3d 803,
804 (8th Cir. 2001).
statute of limitation for § 2254 petitions is subject to
tolling. See 28 U.S.C. § 2244(d)(2). This
one-year statute of limitation period is tolled, or does not
include, the time during which a properly filed application
for state post-conviction relief or other collateral review
is pending in state court. Faulks v. Weber, 459 F.3d
871, 873 (8th Cir. 2006); 28 U.S.C. § 2244(d)(2). The
phrase ''post-conviction or other collateral
review'' in § 2254's tolling provision
encompasses the ''diverse terminology that different
States employ to represent the different forms of collateral
review that are available after a conviction.''
Duncan v. Walker, 533 U.S. 167, 177 (2001). Thus,
§ 2254's tolling provision ''applies to all
types of state collateral review available after a
conviction.'' Id. State collateral or
post-conviction proceedings ''are 'pending'
for the period between the trial court's denial of the
[post-conviction relief] and the timely filing of an appeal
from it.''Maghee v. Ault, 410 F.3d 473, 475
(8th Cir. 2005) (citing Peterson v. Gammon, 200 F.3d
1202, 1203 (8th Cir. 2000)); see also Johnson v.
Kemna, 451 F.3d 938, 939 (8th Cir. 2006) (an application
for state post-conviction review is pending until a mandate
state proceedings are not pending for the ninety-day period
''following the final denial of state post-conviction
relief, the period during which an unsuccessful state court
petitioner may seek a writ of certiorari from the United
States Supreme Court.'' Jihad, 267 F.3d at
805. Additionally, ''[s]tate proceedings are not
pending during the time between the end of direct review and
the date an application for state [post-conviction relief] is
filed.'' Maghee, 410 F.3d at 475 (citing
Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001)).
In short, the one-year statute of limitations begins to run
after the state conviction is final, is tolled while state
habeas proceedings are pending, and then begins running again
when state habeas proceedings become final. Curtiss v.
Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th
Court may raise the statute of limitations issue sua
sponte. Day v. McDonough, 547 U.S. 198, 209 (2006). The
Court must, before acting on its own initiative to dismiss
the federal petition based on the AEDPA statute of
limitations, "accord the parties fair notice and
opportunity to present their positions." Day,
547 U.S. at 210. Further, the Court must
"assure itself that the Petitioner is not significantly
prejudiced by the delayed focus on the limitation issue, and
determine whether the ...