Stulken v. Young
Filing
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ORDER granting 5 Motion to Dismiss. No certificate of appealability shall issue. Signed by U.S. District Judge Roberto A. Lange on 9/19/2016. (JLS)
UNITED STATES DISTRICT COURT
FILED
SEP 1 9 2016
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
~~
DWIGHT STULKEN,
Petitioner,
3: 16-CV-03010-RAL
vs.
DARIN YOUNG, Warden of the South
Dakota State Penitentiary and
Authorized Person Having Custody of
Petitioner,
ORDER GRANTING
MOTION TO DISMISS
Respondent.
On February 16, 2016, Petitioner Dwight Stulken ("Stulken") filed a
Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to
28 U.S.C. § 2254. Doc. 1. Respondent moves to dismiss Stulken's petition.
Doc. 5. For the reasons below, respondent's motion is granted and Stulken's
petition is dimissed.
I.
PROCEDURAL BACKGROUND
On December 6, 2010, Stulken pied guilty to one count of First Degree
Rape in a circuit court of South Dakota and was sentenced to 100 years in
prison. Doc. 6-1. The South Dakota Supreme Court affirmed the judgment of
the circuit court on direct appeal. Doc. 6-2. On March 13, 2013, Stulken
moved for a hearing to modify or reduce his sentence, Doc. 6-3, but the circuit
court denied his motion. Doc. 6-4. On January 3I, 20I4, Stulken filed a
petition seeking habeas relief in state court. Doc. 6-5. The circuit court denied
his petition. Doc. 6-7. Stulken applied for a certificate of probable cause, first
in the circuit court and then the South Dakota Supreme Court, but was denied
by both courts. Doc. 6-9; Doc. 6-I I.
On February I6, 20I6, Stulken filed a Petition for Writ of Habeas Corpus
in this Court. Doc. I. Respondent moves to dismiss, arguing that Stulken's
petition is time barred. Doc. 5. Stulken responded, arguing that he is entitled
to equitable tolling, his petition is therefore not time barred, and it should be
decided on the merits. Doc. 7.
II.
A.
DISCUSSION
Statute of Limitations
A person in custody pursuant to a state court judgment may petition a
federal district court for a writ of habeas corpus on the ground that he or she is
in custody in violation of the United States Constitution or federal law. 28
U.S.C. § 2254. Stulken's petition was filed after the enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA), and therefore AEDPA
applies to this petition. Doc. I; Ryan v. Clarke, 387 F.3d 785, 789 (8th Cir.
2004). Under AEDPA, a I-year period oflimitation applies to habeas
applications under§ 2254. 28 U.S.C.A. § 2244(d)(I).
Defendants argue that Stulken's I-year AEDPA statute of limitations has
run. Doc. 7. Stulken does not rebut this argument. In his response, he only
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claims that he is entitled to equitable tolling, and the Court should decide the
merits of his petition. Doc. 7.
B.
Equitable Tolling
The United States Supreme Court has held "that§ 2244(d) is subject to
equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645
(2010)." 'Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstances stood in his way.'" Deroo v.
United States, 709 F.3d 1242, 1246 (8th Cir. 2013) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Stulken does not establish either
element and makes no attempt to do so. Instead, he argues that the state
should not be able to raise the statute of limitations defense.
Stulken cites Wood v. Milyard, 132 S. Ct. 1826 (2012), in support of his
argument. Wood concerned "the authority of a federal court to raise, on its own
motion, a statute of limitations defense to a habeas corpus petition." Id. at
1829. In Wood, the state informed the United States District Court that it
would not challenge the timeliness of Woods' petition. Id. After the district
court denied Woods' petition on the merits, the Tenth Circuit affirmed the
denial but only on the grounds that Woods' petition was untimely. Id.
The Supreme Court held that the Tenth Circuit erred. Id. at 1830. The
Court found that the state had waived the timeliness issue, describing this
waiver as "the 'intentional relinquishment or abandonment of a known right.'"
Id. at 1835 (quoting Kontrick v. Ryan, 540 U.S. 443, 458, n.13 (2004)). Because
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the state waived the issue in the district court, it was error for the appellate
court to resurrect the issue. Id.
Wood is inapplicable to Stulken's petition. Unlike in Wood, the state here
has not affirmatively waived the statute of limitations defense. The state has
not waived the defense at all. Also, the Court in Wood extensively discussed the
relationship between trial and appellate courts, citing restraint from
entertaining issues not raised and preserved in the trial court and "regard for
the trial court's processes and time investment" as "relevant considerations" to
its decision that the appellate court erred. Id. at 1834. These considerations
are inapplicable to Stulken's petition. The state, at its first opportunity to raise
a statute of limitations defense in the proceeding, raises this defense.
Stulken argues that the state could have raised a statute of limitations
defense in the state habeas proceedings. Docket 7 at 3. He argues that the
state effectively waived this defense by failing to raise it in state court and
failing to request that the state court to rule upon the issue. Id. The state
proceeding, however, was a separate proceeding and any defense would have
been raised under a different statute of limitations. See SDCL 21-27-3.3.
For these reasons, Wood is inapplicable to Stulken's petition. Stulken is
not entitled to equitable tolling, and his federal habeas petition is barred from
review. Defendants' motion to dismiss is granted; Stulken's petition is
dismissed.
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C.
Certificate of Appealability
When a district court issues an order under § 2254 adverse to the
applicant it "must issue or deny a certificate of appealability." R. Governing
Section 2254 Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a
habeas application on procedural grounds without reaching the underlying
constitutional claims, the court should issue a certificate of appealability if the
prisoner has shown "that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "Where a
plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further." Id. Stulken's federal habeas petition is time-barred
under AEDPA, and no reasonable jurist could that find Stulken's case is timely
filed or that he is entitled to equitable tolling. Hence, no certificate of
appealability will be issued.
III.
ORDER
Therefore, it is hereby
ORDERED that Respondent's Motion to Dismiss, Doc. 5, is granted. It is
further
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ORDERED that no certificate of appealability shall issue.
Dated September J!L~ 2016.
BY THE COURT:
~0if?:
UNITED STATES DISTRICT JUDGE
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