Morris v. Dooley
Filing
15
OPINION AND ORDER granting 12 Motion to Dismiss. Signed by U.S. District Judge Roberto A. Lange on 7/19/18. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
GARY GLENN MORRIS,
3:18-CV-03002-RAL
Plaintiff,
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS
vs.
ROBERT BOB DOOLEY, CHIEF WARDEN;
AND THE ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,
Defendants.
Gary Glenn Morris (Morris), an inmate at Mike Durfee State Prison in Springfield, South
Dakota, filed his pro se 28 U.S.C. § 2254 habeas corpus petition with this Court on February 15,
2018. Defendants Robert Dooley, Chief Warden of the Mike Durfee State Prison, and Marty
Jackley, Attorney General of the State of South Dakota (defendants), now move to dismiss
Morris's claim because, they contend, the petition is time barred under the Antiterrorism and
Effective Death Penalty Act of 1996(AEDPA). Doc. 13 at 4. Because Morris's petition is time
barred by AEDPA,this Court grants the defendants' motion to dismiss.
I.
Factual and Procedural Background
On January 22, 2013, Morris entered an Alford Plea to fourth-degree rape and sexual
contact with a child under the age of 16 in the Sixth Circuit Court of South Dakota. Doc. 13-4 at
3-4. On March 18, 2013, Morris was sentenced to 15 years in the South Dakota State Penitentiary
on each count, with the sentences running concurrently. Doc. 13-5 at 2. Morris did not appeal his
conviction to the Supreme Court of South Dakota. Twenty-three months after his sentencing,
Morris filed a Petition for Writ of Habeas Corpus, Doc. 13-7, in state court on February 18, 2015.
This petition was denied by the trial court. Doc. 13-8 at 17. The Supreme Court of South Dakota
summarily affirmed the dismissal on September 21, 2016. Doc. 13-12. Morris then brought this
federal habeas petition in February 2018.
Pursuant to AEDPA "[a] 1-year period of limitation shall apply to an applieation for writ
of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. §
2244(d)(1). This one-year period begins to run from the latest of:
(A)The date on which thejudgment became final by the conelusion ofdirect 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 sueh State action;
(C)The date on whieh 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 eould
have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). In Morris's case, the one-year period began to run pursuant to §
2244(d)(1)(A) after the thirty-day period in which he eould appeal his judgment of conviction had
passed without Morris filing an appeal. Doc. 13-6 at 2. Thus, Morris's conviction became final
on April 17, 2013, thirty days after his conviction on March 18, 2013. Morris did not file his state
habeas corpus action until well after the one-year AEDPA limitation period. Morris's present
federal habeas petition likewise was not brought within the one-year period permitted under §
2244. Consequently, Morris's petition must he dismissed unless he is entitled to equitable tolling
ofthe § 2244(d) limit.
In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Coiut held that "§ 2244(d) is
subject to equitable tolling in appropriate cases." 560 U.S. at 645. Equitable tolling is appropriate
only if the prisoner shows "(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way and prevented timely filing." Nelson v. Norris, 618
F.3d 886 (8th Cir. 2010) (quoting Holland v. Florida. 560 U.S. at 649). As this Court has
previously noted, "[e]quitable tolling is an extraordinary remedy." Mokros v. Doolev, No. 4:15CV-04091-RAL, 2016 WL 632239 (D.S.D. Feb. 12, 2016) Cciting Muhammad v. United States,
735 F.3d 812, 815 (8th Cir. 2013)).
Morris filed a Response Opposing Respondents' Motion to Dismiss, Doc. 14. In that
Response, Morris did not contest that his one-year AEDPA statute of limitations had run, but
instead largely argued about the merits of his claims. Doc. 14. Morris in his Response made no
argument about pursuing his rights diligently, nor sought to explain the absence of a direct appeal
of his state court conviction or sentence or the nearly two-year delay between the state eourt
sentencing and his state habeas corpus filing. Doc. 14. The closest Morris came in his Response
to arguing "some extraordinary circumstances" under the Holland standard are assertions of his
limited understanding and allusions to his possible limited mental competence. In the Eighth
Circuit, "[a] conclusive showing ofincompetence is required before mental illness can constitute
cause [for failure to meet procedural bar and justify equitable tolling]." Nachtigall v. Class. 48
F.3d 1076(8th Cir. 1995). Here, Morris has not conclusively shown he was incompetent but rather
avers procedural shortcomings in the trial court's determination of his competence. Morris thus is
not entitled to equitable tolling of § 2244(d). Morris's lack of diligence is apparent from the fact
that he did not appeal his conviction to the Supreme Court of South Dakota, nor did he timely file
either a state habeas petition or a federal habeas case after the Supreme Court of South Dakota
affirmed the dismissal of his state petition. Nor does Morris's petition. Doc. 1, aver that
extraordinary conditions prevented him from more promptly pursuing a remedy. Therefore,
equitable tolling does not apply here and Morris's petition is time barred by § 2244(d).
For the reasons explained above,it is hereby
ORDERED that the defendants' motion to dismiss, Doc. 12,is granted and Morris's federal
habeas petition is dismissed with prejudice.
DATED this 1*^**- day ofJuly, 2018.
BY THE COURT:
ROBERTO A. LAN<
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?