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Pasek v. Young

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

March 16, 2018

JAMES GREGORY PASEK, Petitioner,
v.
DARIN YOUNG, and THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, Respondents.

          ORDER

          VERONICA L. DUFFY United States Magistrate Judge.

         INTRODUCTION

         Petitioner, James Gregory Pasek, an inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota, has filed a pro se 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

         On November 15, 2003, Mr. Pasek was found guilty by a jury of first degree robbery, two counts of grand theft and grand theft by possession of stolen property. Thereafter a court trial was held and Mr. Pasek was found to be a habitual offender. On December 8, 2003, Mr. Pasek was sentenced to life imprisonment without parole for first degree robbery, 15 years' imprisonment for each grand theft charge, and 15 years' imprisonment for the grand theft by possession of stolen property charge. Said sentences were all ordered to be served concurrent to each other, as well as concurrent to his federal sentence imposed in the District of Wyoming. See Docket 1 and attachments. Mr. Pasek filed a direct appeal which was denied by the South Dakota Supreme Court on December 22, 2004.

         On September 20, 2016, nearly twelve years after his direct appeal was denied, Mr. Pasek filed a state habeas petition. That petition was denied by a state circuit court judge on September 28, 2016. Mr. Pasek's request for reconsideration was denied by the South Dakota Supreme Court on January 23, 2017. See Docket 1 and attachments. Mr. Pasek filed the instant federal petition with this court on March 15, 2018.

         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. Pasek'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 ...


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