Shields v. USA

Filing 5

ORDER denying petition for writ of habeas corpus; adopting 3 Report and Recommendation; rejecting 4 Objection to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 3/21/13. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
JUSTIN SHIELDS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Civ. 13-3005-KES

ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS

Petitioner, Justin Shields, filed a pro se petition for relief under 28
U.S.C. § 2255 on February 7, 2013. Docket 1. The court referred the petition to
United States Magistrate Judge John E. Simko pursuant to 28 U.S.C.
§ 636(b)(1)(B) for the purposes of conducting any necessary hearings and
issuing a report and recommendation for the disposition of Shields’s § 2255
petition. On February 8, 2013, Magistrate Judge Simko issued a report and
recommendation for the disposition of Shields’s § 2255 petition. Docket 3.
Shields filed timely objections to the report and recommendation on
February 22, 2013. Docket 4. For the reasons set forth herein, Magistrate
Judge Simko’s report and recommendation will be adopted in its entirety.
DISCUSSION
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. Pursuant to 28 U.S.C. § 636(b)(1), the court reviews de novo any

objections that are timely made and specific. See Fed. R. Civ. P. 72(b) (“The
district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”).
In the instant case, Shields objects to Magistrate Judge Simko’s finding
that Shields’s § 2255 petition is barred by the applicable statute of limitations.
Docket 3 at 2; Docket 4 at 1. Shields argues that the magistrate judge
misconstrued his petition as a first-time habeas petition, which he concedes
would be barred by the applicable statute of limitations. Docket 4 at 1. Shields
asserts that his petition was a request for permission to file a second
successive § 2255 petition in the Eighth Circuit Court of Appeals, and that this
court therefore does not have jurisdiction over the matter. Id. The court has
reviewed de novo the issues raised by Shields’s objections.
As the magistrate judge explained and as Shields concedes, a one-year
statute of limitations applies to the filing of a § 2255 petition. 28 U.S.C.
§ 2255(f); Docket 3 at 2; Docket 4 at 1. Therefore, because Shields’s judgment
of conviction became final on November 23, 2008, Shields needed to file a §
2255 petition prior to November 23, 2009. Shields’s § 2255 petition in this
case was not filed until February 7, 2013, which is more than three years
outside the applicable statute of limitations. Although Shields argues that this
petition was merely a request to the Eighth Circuit for permission to file a
second successive § 2255 petition, there is no evidence that Shields ever filed
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an initial § 2255 petition.1 The magistrate judge therefore properly construed
the petition in question as a first-time request for relief under § 2255 and
correctly recommended that the petition be denied as untimely. The court
adopts the magistrate judge’s recommendation in its entirety and finds that
Shields is not entitled to relief. Accordingly, it is
ORDERED that the report and recommendation of Magistrate Judge
Simko (Docket 3) is adopted in its entirety. Shields’s § 2255 petition is barred
by the applicable statute of limitations. The court therefore rejects Shields’s
objections to Magistrate Judge Simko’s report and recommendation (Docket 4)
and denies Shields’s § 2255 application (Docket 1).
Dated March 21, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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Shields’s record is devoid of any prior § 2255 petitions. Moreover, in the
§ 2255 petition at issue, Shields concedes that, “[o]ther than a direct appeal
from the judgment of conviction and sentence,” he has not “filed any other
petitions, applications for relief, or other motions regarding [his] judgment in
federal court. Docket 1 at 4. He also answers “none” to all questions regarding
details of his first petition, application, or motion. Id.
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