Williams v. Young et al

Filing 11

ORDER not adopting 9 Report and Recommendation except to the extent there are overlapping areas of agreement in the R and R and in this Order; granting in part and denying in part 10 Objection to Report and Recommendation. Signed by U.S. District Judge Lawrence L. Piersol on 9/29/16. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

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FRANK ALLEN WILLIAMS,

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CIV 15-4094

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Petitioner,

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vs.

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ORDER

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DARIN YOUNG, Warden; and

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MARTY JACKLEY,Attorney General

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ofthe State of South Dakota,

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Respondents.

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Petitioner Frank Allen Williams, an inmate at Oak Park Heights Minnesota Correction

Facility, has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge

Duffy issued a Report and Recommendation recommending that the Petition be dismissed with

prejudice for the reason that it was not timely filed. Petitioner Williams objects to the Report and
Recommendation fiom Magistrate Judge Duffy and asks that there be equitable tolling in his case
thus allowing his Petition to go forward.

WHICH PRECEDENT TO FOLLOW

To begin with, the Report and Recommendation concludes that the Eighth Circuit case of
Williams v. Bruton,299 F.3d 981 (8th Cir. 2002)and5'/rew v. Dormire,557 F.3d 960(8th Cir. 2009)
are not sound authority because they do not take into account the United States Supreme Court's

opinions in Evans v. Chavis, 546 U.S. 189(2006) and Lawrence v. Florida, 549 U.S. 327(2007).
After taking that position,the Report and Recommendation concludes that Petitioner Williams does

not get the benefit of the twenty(20) day period during which he would have, but did not, seek a
certificate ofprobable cause from the South Dakota Supreme Court. Had Mr. Williams been given
the benefit ofthat twenty(20)day period,then his Petition would have been timely filed. The Sixth