McClanahan v. Young et al

Filing 17

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND ORDER DENYING CERTIFICATE OF APPEALABILITY and denying 5 Motion to Appoint Counsel ; denying 9 Motion to take Judicial Notice of Petitioners Motion to Show Cause to Proceed with Federal Habeas; denying 10 Motion to take Judicial Notice of Petitioners Motion to Show Cause to Proceed with Federal Habeas. Signed by U.S. District Judge Charles B. Kornmann on 6/25/18. (SKK)

HLED
JUN 2 5 2018
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

SILVER NICKOLICE MCCLANAHAN,
1:18-CV-01002-CBK

Plaintiff,
vs.

ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS AND

DARIN YOUNG,Warden, and MARTY

ORDER DENYING CERTIFICATE OF

JACKLEY, Attorney General of South

APPEALABILITY

Dakota,
Defendants.

Silver McClanahan filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 challenging his May 16,1995, conviction and life sentence for first degree
manslaughter. After initial consideration, petitioner was ordered to set forth cause, if
any, why the petition should not be dismissed as untimely.
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996

("AEDPA"),28 U.S.C. § 2244(d)(1), a "1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the judgment of
a State court." The one year period of limitations 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).

Petitioner pleaded guilty to voluntary manslaughter and was sentenced to life

imprisonment on May 16,1995. He filed an application for a writ of habeas corpus in
state court in 2010. The Fifth Judicial Circuit denied the petition on August 16, 2017.
As set forth in the order to show cause,fifteen years elapsed between the date petitioner's
conviction and sentence became final and the date petitioner filed his state court petition

for a writ of habeas corpus. Petitioner's one year period of limitations expired well
before he filed his state court petition challenging his conviction and sentence of
imprisonment.

Petitioner has not identified any provision of § 2244(d)(2) which would have

extended the limitations period. Nor has he identified "extraordinary circumstances"

beyond his control that made it impossible to file a petition on time and thus warranting

equitable tolling. Baker v. Norris. 321 F.3d 769,771 (8th Cir. 2003). In response to the
order to show cause why the petition should not be dismissed, petitioner asserts that he

received ineffective assistance of counsel during his state trial and appellate proceedings,
that he had inadequate access to a law library, and that he was not advised that a one year
period of limitations existed. None of the foregoing constitute extraordinary
circumstances. Id.

Based upon a review of the state court criminal and habeas records and

petitioner's response to the order to show cause, summary dismissal of the petition is
appropriate pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings for the
United States District Courts.

Now,therefore,

IT IS ORDERED that the petition for a writ of habeas corpus is denied as
untimely. Petitioner's motions to appoint counsel, to take judicial notice, and to show
cause to proceed, Docs. 5,9, and 10, are denied.
IT IS HEREBY CERTIFIED that there does not exist probable cause of an
appealable issue with respect to the Court's order denying petitioner's untimely petition
for a writ of habeas corpus. No certificate of appealability will be granted. This in no
way hampers the petitioner's ability to request issuance of the certificate by a circuit
judge pursuant to Fed. R. App. P. 22.

DATED this^<^^y of June, 2018.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge