White v. Weber, No. 4:2009cv04103 - Document 6 (D.S.D. 2009)

Court Description: Opinion and ORDER granting 2 Motion for Leave to Proceed in forma pauperis, Petitioner shall pay the $5.00 filing fee on or before August 24, 2009; directing Clerk to serve Attorney General. Signed by U.S.Magistrate Judge John E. Simko on 7/21/09. (SLW) Modified on 8/19/2009 to add text and change type(SLW).

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION 1:'1't .1:' D ~ .U D \}l 2 , 2009 * * * * * * * * * * * * * * * * * * * * * * * * : * * * * * * * * * * * * * * * * * * *~. * * \ DONALD RAY WHITE, Petitioner, * * * CIV.09-4103 r*** ~~ c::;;p OPINION AND ORDER * * DOUGli-AS WEBER, * * Respondent. * * *** ******* ********** *** *********** ********** *** ***** ..vs- ~etitioner, Donald Ray White, an inmate at the South Dakota State Penitentiary, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.c. § 2254. PROCEDURAL HISTORY ~n November 3, 2004, the Petitioner was sentenced to 20 years imprisonment consecutive Ii to a 10 ybar sentence for grand theft imposed in another case. Petitioner did not file a direct appeal. :i Four ye~s later in November, 2008, Petitioner filed a state habeas petition which has been dismissed. See Doc. 1. The South Dakota Supreme Court affirmed, and dismissed Petitioner's state habeas claims. Id.; White v. Weber, 2009 WL 1698272 (SO June 17, 2009). Petitioner's instant federal habeas petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which imposes a one-year statute of limitations for filing federal habeas petitions. 28 U.S.C. § 2244(d)(l); Beery v. Ault, 312 F.3d 948, 949 (8 th Cir. 2003). The federal limitations period runs from the date on which Petitioner's state judgment became final by the conclusion ofdirect review or the expiration oftime for seeking direct review. Id. By Supreme Court rule, a petitioner has 90 days from the date of entry of judgment in a state court of last resort to petition for certiorari. Id., Sup. Ct. R. 13. The statute of limitations is tolled, however, while "a properlYiifiled application for State post-conviction review is pending." Id.; § 2244(d)(2). See :1 generallY, Painter v. State ofIowa, 247 F.3d 1255,1256 (8 th Cir. 2001) ("a review of our cases makes clear, however, that the time between the date that direct review ofa conviction is completed and the 9ate that an application for state post-conviction relief is filed counts against the one-year period."). See also Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851,853 (rejecting the suggestion that the federal filing deadline had not expired because state petition was timely filed according to state law, and federal petition was filed within one year after state statute oflimitations had expired); Jackson v. Ault, 452 F.3d 734, 735 (8 th Cir. 2006) ("It does not matter that [petitioner's] ...state post conviction relief application was timely filed under [state] law. The one year AEDPA time limit for federal habeas filing cannot be tolled after it has expired."). the Court may raise the statute oflimitations issue sua sponte. Day v. McDonough, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006). The Court must, before acting on its own initiative to dismiss the federal petition based on the AEDPA statute oflimitations, "accord the parties fair notice and opportunity to present their positions." Id. Further, the Court must "assure itself that the Petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and detennine whether the interests of justice would be better served by addressing the merits or dismissing the petition as time barred." Id. Accordingly, the Court will order the parties to show cause why his federal ~etition should not be dismissed as untimely. CONCLUSION AND ORDER ~ccordingly, it is hereby ORDERED that: (11) Petitioner's motion to proceed in fonna pauperis (Doc. 2) is GRANTED. Petitioner shall pay the $5.00 filing fee on or before August 24, 2009. (2) The Clerk of Court is directed to serve upon the Attorney General of the State of South Dakota, by certified mail, a copy of the petition and this Order; (3) On or before September 14, 2009, the parties shall file briefs, documentation, and/or other appropriate authority showing cause why Petitioner's federal habeas petition, filed July 14, 2009, should not be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(l). Dated this cJl. day of July, 2009. BY THE COURT: 2

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