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Holtry v. Dooley

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

February 26, 2018

JAMES D. HOLTRY, a/k/a Jim Holtry, Petitioner,
v.
WARDEN BOB DOOLEY, Department of Corrections; and THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.

          ORDER

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Petitioner, 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.

         BACKGROUND

         Mr. 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.

         DISCUSSION

         A. Rule 4

         Rule 4 of the Rules Governing Section 2254 Cases states in pertinent part:

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 . . .

         This 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.

         B. AEDPA Statute of Limitations

         Petitions 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 ...

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