Roach v. Dooley et al
Filing
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ORDER Dismissing Case and denying petition for writ of habeas corpus. Signed by U.S. District Judge Karen E. Schreier on 7/7/2014. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ARLEY ROACH,
Petitioner,
vs.
BOB DOOLEY, and
MARTY J. JACKLEY, Attorney
General of the State of South
Dakota,
Respondents.
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Civ. 13-4146-KES
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
Petitioner, Arley Roach, an inmate at the South Dakota Penitentiary,
filed a petition for relief under 28 U.S.C. § 2254 on January 17, 2013. Docket
4. The petition was referred 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, including evidentiary hearings, and issuing a report and
recommendation for the disposition of Roach’s § 2254 application. Shortly
thereafter, respondents Bob Dooley and Marty J. Jackley moved to dismiss
Roach’s habeas application on procedural grounds.
Docket 8.
On March 28, 2014, Magistrate Judge Simko submitted his Report and
Recommendation advising that respondents’ motion to dismiss be granted and
that Roach’s petition for Writ of Habeas Corpus be denied. Docket 10. On
April 11, 2014, Roach filed a timely objection to the Report and
Recommendation. Docket 11. For the reasons set forth herein, Magistrate
Judge Simko’s Report and Recommendation is adopted in its entirety.
DISCUSSION
In their motion to dismiss, respondents asserted that Roach’s habeas
petition should be dismissed because the application contains claims that
Roach has not exhausted his state court remedies. Docket 11. Without
addressing the merits of Roach’s claim, Magistrate Judge Simko concluded
that because the application contains claims that have not been properly
exhausted, the claim was procedurally defaulted. Docket 10. As a result,
Magistrate Judge Simko recommended that this court grant respondents’
motion to dismiss and deny Roach’s petition. Id.
This court’s review of a magistrate judge’s decision 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.”).
Roach objects to Magistrate Judge Simko’s finding that Roach’s claim is
procedurally defaulted because he failed to exhaust state court remedies.
Docket 11. Roach contends that the magistrate judge, in making his
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recommendation, failed to recognize that the state court’s determination of
Roach’s untimely motion was in error. Id. Roach argues that there is cause
because his filing of a motion for certificate of probable cause was timely. Id.
More specifically, Roach argues that in failing to recognize the state’s error, the
magistrate judges’ recommendation perpetuates the miscalculation of time by
not factoring in the exclusion of weekends and holidays. Id. Roach contends
that because the motion was made within thirty days, excluding weekends and
holidays, it was timely.
In the instant case, Roach filed his petition for Writ of Habeas Corpus in
state circuit court on September 26, 2013. Docket 9-3. The state circuit court
denied his petition on November 4, 2013, because his claims were frivolous
and not made in good faith. Docket 9-4. Additionally, the same court denied
his request for a certificate of probable cause on November 4, 2013. Roach did
not file his motion for a certificate of probable cause with the South Dakota
Supreme Court until December 2, 2013, which was 28 days after the circuit
court denied his motion for a certificate of probable cause. Pursuant to SDCL
21-27-18.1, Roach had twenty days from the date of the circuit court judge’s
refusal to file a motion for a certificate of probable cause with the South
Dakota Supreme Court.
It appears that Roach confuses the time period to file an appeal with the
time period to file a motion for a certificate of probable cause. Docket 11. Only
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when the Certificate of Probable Cause has been issued by the circuit court
does a petitioner have thirty days to file an appeal. Faulks v. Weber, 459 F.3d
871, 874 (8th Cir. 2006). Here, Roach could not file a direct appeal because a
certificate of probable cause had not been issued. Therefore, the deadline to file
a motion for a certificate of probable cause was twenty days.
Additionally, Roach contends that weekends and holidays are excluded
in computing the period of time he had to file his motion. SDCL 15-6-6(a)
provides that “[w]hen the period of time prescribed or allowed is less than
eleven days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation.” In the instant action, the exclusion does not
apply because the time period to file his motion with the South Dakota
Supreme Court was greater than 11 days. Therefore, Roach’s motion was
untimely because it was made later than November 25, 2013, the last possible
day he could have filed.
As Magistrate Judge Simko noted, because Roach failed to timely seek a
certificate of probable cause, Roach’s December 30, 2013, petition is
procedurally defaulted. A district court may not consider the merits of a
procedurally defaulted claim where the state court did not address the merits
because petitioner failed to follow applicable state procedural rules when
raising the claim. Ruiz v. Norris, 71 F.3d 1404, 1409 (8th Cir. 1995). If the
petitioner shows cause for the default and actual prejudice, however, the court
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may consider its merits. Maynard v. Lockhart, 981 F.2d 981, 984 (8th Cir.
1992). Because Roach has not shown cause for his default, the court will not
consider the merits of Roach’s petition. Additionally, as Magistrate Judge
Simko noted, Roach failed to respond to respondents’ motion to dismiss and
Roach’s “pro se status and lack of familiarity with the intricacies of the law
cannot alone constitute cause.” McKinnon v. Lockhart, 921 F.2d 830, 832, n.5
(8th Cir. 1990) cert. denied, 501 U.S. 1208 (1991). Because Roach has not
shown cause for his default, the court will not explore prejudice. Accordingly,
it is
ORDERED that Magistrate Judge Simko’s report and recommendation
(Docket 10) is adopted. Respondents’ motion to dismiss (Docket 8) is granted,
and Roach’s petition for Writ of Habeas Corpus (Docket 1) is denied.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
Dated July 7, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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