United States District Court, D. South Dakota, Southern Division
JAMES D. HOLTRY, a/k/a Jim Holtry, Petitioner,
WARDEN BOB DOOLEY, Department of Corrections; and THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.
James D. Holtry, an inmate at the Rapid City Community Work
Center in Rapid City, South Dakota, has filed an action which
has been construed to be a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The pending matter was
referred to the magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the October 16, 2014, standing order of the
Honorable Jeffery L. Viken, Chief District Judge.
Holtry's filings and attachments thereto indicate the
following: He pled guilty to possessing, manufacturing, or
distributing child pornography (Class 4 Felony) in South
Dakota state court and was sentenced on December 22, 2015, to
808 days' imprisonment. See Docket 7, Exhibit A.
Mr. Holtry did not file a direct appeal. On April 5, 2017,
Mr. Holtry filed a state habeas petition. The petition was
denied on September 26, 2017. See Docket 7, Exhibit
B. Mr. Holtry's request for a certificate of probable
cause was denied by the South Dakota Supreme Court on
December 1, 2017. See Docket 7, Exhibit C. Mr.
Holtry filed the instant federal petition with this court on
February 23, 2018. Docket 1.
of the Rules Governing Section 2254 Cases states in pertinent
The clerk must promptly forward the petition to a judge under
the court's assignment procedure, and the judge must
promptly examine it. If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner. If
the petition is not dismissed, the judge must order the
respondent to file an answer, motion or other response within
a fixed time, or to take other action the judge may order . .
Court's preliminary review, required by Rule 4, reveals
that Mr. Holtry's pending § 2254 petition may be
barred by the AEDPA statute of limitations.
AEDPA Statute of Limitations
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 ...