Locklear v. Weber
Filing
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ORDER granting 15 Motion to Dismiss. Signed by Chief Judge Karen E. Schreier on 5/16/2011. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICKEY LOCKLEAR,
Petitioner,
vs.
DOUGLAS WEBER, Warden,
South Dakota State Penitentiary;
and MARTY J. JACKLEY, Attorney
General, State of South Dakota;
Respondents.
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Civ. 10-4174-KES
ORDER DISMISSING PETITION
FOR HABEAS CORPUS
Petitioner, Mickey Locklear, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. Respondents move to dismiss his petition,
arguing it is time-barred under the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA). Because over three years have elapsed since
his conviction became final, Locklear’s petition for writ of habeas corpus is
dismissed.
DISCUSSION
I.
The AEDPA Statute of Limitations Has Lapsed
Under the AEDPA, state prisoners have one year to file their federal
petitions for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year
statute of limitations is triggered by “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time
for seeking such review.” Id. § 2244(d)(1)(A). If a prisoner files a petition for
certiorari, then his conviction becomes final upon “the completion or denial
of certiorari proceedings before the United States Supreme Court.” Smith v.
Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). If the prisoner does not file a
petition with the United States Supreme Court, then his conviction becomes
final when the time for filing that petition expires, so long as the Supreme
Court could have reviewed his direct appeal. Riddle v. Kemna, 523 F.3d 850,
855 (8th Cir. 2008).
The statute of limitations is tolled during the time that an application
for post-conviction or other collateral review is pending in state court. 28
U.S.C. § 2244(d)(2). But the time between the date that a state postconviction challenge becomes final and the date of the filing of a federal
habeas petition counts against the one-year period. Because a federal
habeas petition is not an application for “state post conviction or other
collateral review” under 28 U.S.C. § 2244(d)(2), the limitations period is not
tolled during the pendency of a federal habeas petition. Duncan v. Walker,
533 U.S. 167, 181-82 (2001).
On June 4, 2003, Judge Gene Paul Kean entered Locklear’s judgment
of conviction. Docket 15-1. It was filed the same day. Locklear then had
thirty days to file an appeal with the South Dakota Supreme Court. See
SDCL 23A-32-15. “An appeal from the judgment must be taken within thirty
days after the judgment is signed, attested, and filed.” Locklear filed a direct
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appeal with the Supreme Court of South Dakota on June 17, 2003. Docket
15-2. On March 18, 2004, the South Dakota Supreme Court affirmed his
conviction and it became final. Docket 15-3. Locklear did not seek a writ of
certiorari from the United States Supreme Court. Even if Locklear is
afforded 90 days to seek certiorari, his conviction became final no later than
June 16, 2004, when the time for seeking direct review expired. See 28
U.S.C. § 2244(d)(1). Thus, he had until June 16, 2005, to file a petition for
federal habeas relief.
On December 12, 2007, Locklear filed his first federal petition for writ
of habeas corpus. See Civ. 07-4182. On April 3, 2008, United States District
Judge Lawrence L. Piersol granted respondents’ motion to dismiss without
prejudice for failure to exhaust state remedies, but he did not grant a stay
or hold the case in abeyance as permitted by Rhines v. Weber, 544 U.S. 269
(2005). See Civ. 07-4182, Docket 24 (adopting report and recommendation);
Docket 22, Report and Recommendation (noting that because Locklear’s
petition contained only unexhausted claims a stay under Rhines was
inappropriate and his petition was subject to dismissal for failure to exhaust
state remedies). Because the filing of a federal petition does not toll the
limitations period, the period during which his federal petition was pending
counts against the statute of limitations.
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Approximately 1,369 days or about 3 years and 9 months elapsed
between June 16, 2004, the date Locklear’s conviction became final, and
March 17, 2008, the date he sought state habeas relief. See Docket 15-4,
Application for Writ of Habeas Corpus. Locklear filed an amended
application for state habeas corpus on November 25, 2009. State Circuit
Judge William J. Srstka, Jr. denied Locklear’s petition on April 27, 2010.
Docket 15-5. On April 29, 2010, an order dismissing Locklear’s petition was
filed. Docket 15-6. Locklear then filed a motion to reconsider on May 6,
2010, which the state circuit court denied on June 3, 2010. Locklear
subsequently applied for a certificate of probable cause, which the court
denied on June 3, 2010. Docket 15-9. The South Dakota Supreme Court
denied Locklear’s motion for a certificate of probable cause on October 30,
2010. Docket 15-10. His state habeas action became final on that date and
the statute of limitations began to run again.
Approximately 53 days elapsed before Locklear filed this federal
petition on December 22, 2010. Thus, the total time that counts against
Locklear is approximately 1,422 days or 3 years, 10 months, and 23 days.
As a result, Locklear’s petition for federal habeas corpus relief is dismissed
because it is time-barred under § 2244(d)(1).
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II.
Equitable Tolling Does Not Apply
Under the AEDPA, equitable tolling is available to a state prisoner
applying for federal habeas relief in extraordinary circumstances. 28 U.S.C.
§ 2241(d)(1); Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Locklear has
not shown he is entitled to equitable tolling. That is, he has not shown
“ ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.”
Holland, 130 S. Ct. at 2562 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Locklear waited over three years before filing his federal petition,
and he has made no showing that any extraordinary circumstances stood in
his way to prevent him from filing a timely petition. Accordingly, he is not
entitled to equitable relief from the AEDPA’s one-year statute of limitations.
CONCLUSION
Locklear’s petition for habeas corpus is barred by the one-year statute
of limitations applicable to federal petitions for habeas corpus. He has not
demonstrated that he is entitled to equitable tolling of the time period. It is
ORDERED that respondents’ motion to dismiss Locklear’s application
for writ of habeas corpus (Docket 15) is granted, and Locklear’s petition for
writ of habeas corpus under 28 U.S.C. § 2254 (Docket 1) is dismissed.
Locklear is notified that he may not appeal the dismissal of his
petition unless he receives a certificate of appealability from this
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court. In order to receive a certificate of appealability, Locklear is required
to make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules
Governing Section 2254 Cases for the United States District Courts,
Locklear will have 30 days to submit arguments on whether a
certificate of appealability should issue. Locklear is directed to identify
the issues for which he seeks a certificate of appealability.
Dated May 16, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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