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Tornquist v. Young

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

October 23, 2019

MATTHEW C. TORNQUIST, Plaintiff,
v.
DARIN YOUNG, MARTY JACKLEY, THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA; Defendants.

          ORDER TO SHOW CAUSE

          VERONICA L. DUFFY, United States Magistrate Judge.

         INTRODUCTION

         This matter is before the court on the pro se petition of Matthew Tornquist seeking habeas relief pursuant to 28 U.S.C. § 2254. See Docket No. 1. Now pending is the respondents' motion to dismiss Mr. Tornquist's petition without holding an evidentiary hearing. See Docket No. 5. Respondent asserts Mr. Tornquist has procedurally defaulted his claims. See Docket No. 6.

         Mr. Tornquist has not filed any response in opposition to respondent's motion. This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge.

         DISCUSSION

         Mr. Tornquist's state court conviction became final approximately March 7, 2016. He filed a habeas petition before the South Dakota state courts on November 30, 2017. This was an interval of greater than one year (approximately 21 months).

         Mr. Tornquist's § 2254 habeas petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). AEDPA contains a one-year statute of limitations providing as follows:

(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 seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation 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;
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period ...

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