United States District Court, D. South Dakota, Western Division
DANNY D. BISSONETTE, Petitioner,
ROBERT DOOLEY, WARDEN; DAVID GILBERTSON, CHIEF JUSTICE SOUTH DAKOTA SUPREME COURT; AND CRAIG A. PFEIFLE, CIR. COURT JUDGE-SEVENTH CIR.; Respondents.
JEFFREY L. VIKEN CHIEF JUDGE
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).
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.
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.
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.
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.
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).
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.
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.
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.
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)).
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 ...