Berhanu v. Young et al

Filing 13

ORDER denying 4 Motion to Appoint Counsel ; granting 7 Motion to Dismiss; adopting 11 Report and Recommendation; denying 12 Objection to Report and Recommendation, and declining to issue certificate of appealability. Signed by U.S. District Judge Lawrence L. Piersol on 8/14/14. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED

AUG, 4 2014

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CIV 14-4060
ALEMU T. BERHANU,
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Petitioner,
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vs.
DARIN YOUNG, Warden; and
MARTY JACKLEY, Attorney General
ofthe State of South Dakota,

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ORDER

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Respondents.
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The Court has conducted a de novo review of Petitioner's case before this Court, including

Petitioner's Objections to the Report and Recommendation.

The Court accepts Petitioner's

representations that he is an immigrant who does not read or write English above the second grade
level and that the Petitioner is not well educated or trained in legal matters. In addition, the Court
accepts Petitioner's representations that some ofhis legal papers were lost when he was placed in the
special housing unit in the Penitentiary. The Court does find that these limiting circumstances are still
insufficient to invoke equitable tolling. Without equitable tolling the Petitioner's Petition before this
Court is untimely as that Petition had to be brought within the one (1) year statute of limitations
which is provided by 28 U.S.c. § 2244(b). The Court does adopt the Report and Recommendation
including the conclusion which shows the total elapsing time of685 days, that being in excess ofthe
one (1) year statute oflirnitations. In addition, the Court finds that Petitioner has failed to make a
substantial showing ofthe denial of a constitutional right and therefore a certificate ofappealability
will not issue. 28 U.S.c. 2253(c)(2). Accordingly,
IT IS ORDERED:
1.

That the Petitioner's Objections (Doc. 12) are DENIED, and the Magistrate
Judge's Report and Recommendation (Doc. 11) is ADOPTED.

2.

That Respondents' Motion to Dismiss Petitioner's Application for Writ of

Habeas Corpus (Doc. 7) is GRANTED.
3.

That Petitioner's Application for Writ ofHabeas Corpus (Doc. 1) is DENIED
with prejudice.

4.

That Petitioner's Motion for Appointment ofCounsel (Doc. 4) is DENIED as
moot.

5.

That a Certificate of Appealability shall not issue .

..'=.,

Dated this _\~_ day of August, 2014.
BY THE COURT:

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..........,~_L'~\1...__.
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a rence L. Piersol
ited States District Judge
ATTEST:

JOSEPH HAAS, CLERK

By.imwa ~
Deputy