Running Bird v. Weber et al

Filing 7

MEMORANDUM OPINION AND ORDER Signed by US Magistrate Judge John E. Simko on 11/27/12. (SLW)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

NOV 2 7 2012

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CIY. 12-4187
HAROLD RUNNING BIRD,
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Petitioner,
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-vs*
OPINION AND ORDER
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DOUGLAS WEBER, Warden, and
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MARTY JACKLEY, Attorney General,
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Respondents.
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Petitioner, Harold Running Bird, an inmate at the South Dakota State Penitentiary, has filed
a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY
After a jury trial held in April of 200 1, Petitioner was convicted of second degree rape and
kidnapping. The trial court sentenced Petitioner to 75 years in prison for the kidnapping conviction
and 25 years on the rape conviction, to be served consecutively. Petitioner's conviction was affinned
on appeal by the South Dakota Supreme Court on July 24, 2002. See State v. Running Bird, 649
N.W.2d 609 (S.D. 2002). In 2008, Petitioner filed a state habeas petition which was denied, without
prejudice, on February 27,2008. See Doc. 1, Attachment 1.

Petitioner's instant federal habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA), which imposes a one-year statute of limitations for filing federal
habeas petitions. 28 U.S.C. § 2244(d)(1); Beery v. Auf!, 312 F.3d 948, 949 (8 th Cir. 2003). The
federal limitations period runs from the date on which Petitioner's state judgment became final by
the conclusion ofdirect review or the expiration oftime for seeking direct review. Id. By Supreme
Court rule, a petitioner has 90 days from the date of entry ofjudgment in a state court of last resort
to petition for certiorari. Id., Sup. Ct. R. 13. The statute of limitations is tolled, however, while "a
properly filed application for State post-conviction review is pending." Id.; § 2244(d)(2). See

generally, Painter v. State ofIowa, 247 F.3d 1255,1256 (8

th

Cir. 2001) ("a review of our cases

makes clear, however, that the time between the date that direct review of a conviction is completed
and the date that an application for state post-conviction relief is filed counts against the one-year

period."). See also Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851,853 (rejecting
the suggestion that the federal filing deadline had not expired because state petition was timely filed
according to state law, and federal petition was filed within one year after state statute oflimitations
had expired); Jackson v. Ault, 452 F.3d 734, 735 (8 th Cir. 2006) ("It does not matter that
[petitioner's] ...state post conviction relief application was timely filed under [state] law. The one
year AEDPA time limit for federal habeas filing cannot be tolled after it has expired.").

The Court may raise the statute of limitations issue sua sponte. Day v. McDonough, 126
S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006). The Court must, before acting on its own initiative to
dismiss the federal petition based on the AEDPA statute oflimitations, "accord the parties fair notice
and opportunity to present their positions." ld. Further, the Court must "assure itself that the
Petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and detennine
whether the interests of justice would be better served by addressing the merits or dismissing the
petition as time barred." ld. Accordingly, the Court will order the parties to show cause why his
federal petition should not be dismissed as untimely.

CONCLUSION AND ORDER

Accordingly, it is hereby

ORDERED that:

(1)

The Clerk of Court is directed to serve a copy of the petition and this Order upon
Respondents;

(2)

On or before January 2, 2013, the parties shall file briefs, documentation, and/or
other appropriate authority showing cause why Petitioner's federal habeas petition,
filed October 31, 2012, should not be dismissed as untimely pursuant to 28 U .S.C.
§ 2244(d)(1).
Dated this;t.;l day of November, 2012.

BY THE COURT:

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