United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Glenn Morris (Morris), an inmate at Mike Durfee State Prison
in Springfield, South Dakota, filed his pro se 28 U.S.C.
§ 2254 habeas corpus petition with this Court on
February 15, 2018. Defendants Robert Dooley, Chief Warden of
the Mike Durfee State Prison, and Marty Jackley, Attorney
General of the State of South Dakota (defendants), now move
to dismiss Morris's claim because, they contend, the
petition is time barred under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Doc. 13 at 4. Because
Morris's petition is time barred by AEDPA, this Court
grants the defendants' motion to dismiss.
Factual and Procedural Background
January 22, 2013, Morris entered an Alford Plea to
fourth-degree rape and sexual contact with a child under the
age of 16 in the Sixth Circuit Court of South Dakota. Doc.
13-4 at 3-4. On March 18, 2013, Morris was sentenced to 15
years in the South Dakota State Penitentiary on each count,
with the sentences running concurrently. Doc. 13-5 at 2.
Morris did not appeal his conviction to the Supreme Court of
South Dakota. Twenty-three months after his sentencing,
Morris filed a Petition for Writ of Habeas Corpus, Doc. 13-7,
in state court on February 18, 2015. This petition was denied
by the trial court. Doc. 13-8 at 17. The Supreme Court of
South Dakota summarily affirmed the dismissal on September
21, 2016. Doc. 13-12. Morris then brought this federal habeas
petition in February 2018.
to AEDPA "[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." 28
U.S.C. § 2244(d)(1). This one-year period begins to run
from the latest of:
(A) The date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) The date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) The date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) The date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). In Morris's case, the
one-year period began to run pursuant to § 2244(d)(1)(A)
after the thirty-day period in which he could appeal his
judgment of conviction had passed without Morris filing an
appeal. Doc. 13-6 at 2. Thus, Morris's conviction became
final on April 17, 2013, thirty days after his conviction on
March 18, 2013. Morris did not file his state habeas corpus
action until well after the one-year AEDPA limitation period.
Morris's present federal habeas petition likewise was not
brought within the one-year period permitted under §
2244. Consequently, Morris's petition must be dismissed
unless he is entitled to equitable tolling of the §
Holland v. Florida, 560 U.S. 631 (2010), the Supreme
Court held that "§ 2244(d) is subject to equitable
tolling in appropriate cases." 560 U.S. at 645.
Equitable tolling is appropriate only if the prisoner shows
"(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstances stood in his
way and prevented timely filing." Nelson v.
Norris, 618 F.3d 886 (8th Or. 2010) (quoting Holland
v. Florida, 560 U.S. at 649). As this Court has
previously noted, "[e]quitable tolling is an
extraordinary remedy." Mokros v. Dooley, No.
4:15-CV-04091-RAL, 2016 WL 632239 (D.S.D. Feb. 12, 2016)
(citing Muhammad v. United States, 735 F.3d 812, 815
(8th Cir. 2013)).
filed a Response Opposing Respondents' Motion to Dismiss,
Doc. 14. In that Response, Morris did not contest that his
one-year AEDPA statute of limitations had run, but instead
largely argued about the merits of his claims. Doc. 14.
Morris in his Response made no argument about pursuing his
rights diligently, nor sought to explain the absence of a
direct appeal of his state court conviction or sentence or
the nearly two-year delay between the state court sentencing
and his state habeas corpus filing. Doc. 14. The closest
Morris came in his Response to arguing "some
extraordinary circumstances" under the Holland
standard are assertions of his limited understanding and
allusions to his possible limited mental competence. In the
Eighth Circuit, "[a] conclusive showing of incompetence
is required before mental illness can constitute cause [for
failure to meet procedural bar and justify equitable
tolling]." Nachtigall v. Class, 48 F.3d 1076
(8th Cir. 1995). Here, Morris has not conclusively shown he
was incompetent but rather avers procedural shortcomings in
the trial court's determination of his competence. Morris
thus is not entitled to equitable tolling of § 2244(d).
Morris's lack of diligence is apparent from the fact that
he did not appeal his conviction to the Supreme Court of
South Dakota, nor did he timely file either a state habeas
petition or a federal habeas case after the Supreme Court of
South Dakota affirmed the dismissal of his state petition.
Nor does Morris's petition, Doc. 1, aver that
extraordinary conditions prevented him from more promptly
pursuing a remedy. Therefore, equitable tolling does not
apply here and Morris's petition is time barred by §
reasons explained above, it is hereby
that the defendants' motion to dismiss, Doc. 12, is
granted and Morris's federal habeas ...