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Bissonette v. Dooley

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

September 11, 2017

DANNY D. BISSONETTE, Petitioner,
v.
ROBERT DOOLEY, WARDEN; DAVID GILBERTSON, CHIEF JUSTICE SOUTH DAKOTA SUPREME COURT; AND CRAIG A. PFEIFLE, CIR. COURT JUDGE-SEVENTH CIR.; Respondents.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Petitioner Danny D. Bissonette, appearing pro se, filed a petition for a writ of habeas corpus. (Docket 1). Petitioner is incarcerated at the Mike Durfee State Prison in Springfield, South Dakota, pursuant to a 2010 South Dakota state court judgment. (Docket 14 at p. 1). Respondents filed a motion to dismiss Mr. Bissonette's petition for failure to abide by the statute of limitations. (Docket 10).

         Pursuant to 28 U.S.C. § 636(b)(1)(B) and this court's October 16, 2014, standing order, the petition was referred to United States Magistrate Judge Veronica L. Duffy. Magistrate Judge Duffy filed a report and recommendation concluding the court should grant respondents' motion and dismiss Mr. Bissonette's petition because it is not timely. (Docket 10 at p. 8). Mr. Bissonette filed timely objections to Magistrate Judge Duffy's report and recommendation. (Docket 15).

         ANALYSIS

         The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The 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). Mr. Bissonette's objections are overruled and the report and recommendation is adopted in full.

         Mr. Bissonette sets forth several objections to the magistrate judge's report and recommendation. (Docket 15). His core objection is that the magistrate judge erred in construing his petition for a writ of habeas corpus as a petition brought under 28 U.S.C. § 2254. Id. The decision to construe the petition that way formed the basis for the recommendation to dismiss Mr. Bissonette's petition. (Docket 14 at pp. 6-8). The court must address this threshold issue at the outset.

         Mr. Bissonette's petition states it was filed pursuant to 28 U.S.C. § 2241. (Docket 1 at p. 1). In his petition, Mr. Bissonette asserts he is a state prisoner. Id. He explains he pled guilty to aggregated grand theft by receiving stolen property and a state circuit court sentenced him to eight years in prison. Id.

         “Section 2241 bestows upon district courts the power to grant habeas corpus relief to a ‘prisoner' who ‘is in custody in violation of the Constitution or laws or treaties of the United States.' ” In re Wright, 826 F.3d 774, 778 (4th Cir. 2016) (quoting 28 U.S.C. § 2241(a), (c)(3)). “Section 2254, on the other hand, applies to a subset of those to whom § 2241(c)(3) applies-it applies to ‘a person in custody pursuant to the judgment of a State court' who is ‘in custody in violation of the Constitution or laws or treaties of the United States.' ” Thomas v. Crosby, 371 F.3d 782, 786 (11th Cir. 2004) (quoting 28 U.S.C. § 2254(a)) (emphasis in original). “The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 requires a state prisoner seeking federal habeas corpus relief to file a petition for federal habeas relief within one year after a state conviction becomes final.” Faulks v. Weber, 459 F.3d 871, 873 (8th Cir. 2006) (citing 28 U.S.C. § 2244(d)(1)(A)). If a prisoner properly seeks habeas corpus relief under § 2241, there is no statute of limitations applicable to the petition. See Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007) (“[T]here is no statute of limitations applicable to a federal prisoner's filing a section 2241 petition.”); see also Mathena v. United States, 577 F.3d 943, 945 (8th Cir. 2009) (recognizing Morales' holding but not deciding the issue).

         In a United States District Court, state prisoners “can only obtain habeas relief through § 2254, no matter how [their] pleadings are styled . . . .” Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001); see Abordo v. O'Dell, 23 Fed.Appx. 615, at *1 (8th Cir. Dec. 4, 2001) (“Although Mr. Abordo labeled his suit as one brought under section 2241, the only vehicle for his attack on his confinement is 28 U.S.C. § 2254, because he is in custody pursuant to a state court judgment.”). “A state prisoner cannot evade the procedural requirements of § 2254 by filing something purporting to be a § 2241 petition. If the terms of § 2254 apply to a state habeas petitioner-i.e., if he is ‘in custody pursuant to the judgment of a State court”-then we must apply its requirements to him.” Thomas, 371 F.3d at 787.

         Because Mr. Bissonette is a state prisoner, the only path for the habeas corpus relief he seeks is § 2254. See Crouch, 251 F.3d at 722-23. The court finds it must apply the procedural requirements for § 2254 petitions to Mr. Bissonette. See id.; Thomas, 371 F.3d at 787.

         One procedural aspect of a § 2254 petition is it must be filed within the one-year statute of limitations. See Faulks, 459 F.3d at 873 (citing 28 U.S.C. § 2244(d)(1)(A)). “A petitioner has one year from the time a state court judgment becomes final to apply for a federal writ of habeas corpus.” Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851, 853 (8th Cir. 2003) (citing 28 U.S.C. § 2244(d)(1)(A)). The state court judgment is final at “either (i) 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 (ii) 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). “Under 28 U.S.C. § 2244(d)(2), [the one-year statutory] period does not include the time during which a properly filed application for state collateral review is ‘pending' in the state courts.” Faulks, 459 F.3d at 873.

         The record is clear that Mr. Bissonette did not file anything related to challenging his state court conviction until 2015. (Docket 14 at p. 5). His deadline for direct appeal of the state court judgment was January 28, 2011. Id. One year from that day, January 28, 2012, was the last day to file a petition in this court for habeas corpus relief. Id. Because Mr. Bissonette did not submit any post-conviction filings until more than one year after his state court judgment became final, his § 2254 petition is not timely. See Curtiss, 338 F.3d at 853 (citing 28 U.S.C. § 2244(d)(1)(A)).

         “The one-year time limit in § 2244(d)(1) is a statute of limitations and not a jurisdictional bar[, so it] may be equitably tolled.” Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003). “Under the doctrine of equitable tolling, the AEDPA's statutory limitations period may be tolled if a petitioner can show that (1) he has been diligently pursuing his rights and (2) an extraordinary circumstance stood in his way.” White v. Dingle, 616 F.3d 844, 848 (8th Cir. 2010) (citing Holland v. Florida, 560 U.S. 631 (2010)). “Equitable tolling is a flexible procedure that involves both recognition of the role of precedent and an ‘awareness of the ...


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