Cottier v. Young et al

Filing 3

ORDER for service. Signed by US Magistrate Judge Veronica L. Duffy on 1/12/2017. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES A. COTTIER,

4:17-CV-4003-LLP

Petitioner,

ORDER

vs.
DARON YOUNG; THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA;
Respondents.
INTRODUCTION
Petitioner, James A. Cottier, an inmate at the South Dakota State
Penitentiary in Sioux Falls, South Dakota, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. ' 2254. This matter was referred to this magistrate
judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and the October 16, 2014,
standing order of the Honorable Karen E. Schreier, District Judge.
BACKGROUND
Mr. Cottier was convicted at trial of manslaughter in the first degree with a
dangerous weapon and sentenced to 40 years’ imprisonment on December 13,
2006. The South Dakota Supreme Court affirmed his conviction on August 6,
2008. It is unclear from Mr. Cottier’s filings in this case whether Mr. Cottier filed a
state habeas action. Mr. Cottier filed this federal habeas corpus petition on
January 12, 2017.

DISCUSSION
A.

Rule 4
Rule 4 of the Rules Governing Section 2254 Cases states in pertinent part:
The clerk must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must promptly examine
it. If it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the
petitioner. If the petition is not dismissed, the judge must order the
respondent to file an answer, motion or other response within a fixed
time, or to take other action the judge may order . . .
This court’s preliminary review, required by Rule 4, reveals that

Mr. Bissonette’s pending § 2254 petition may be barred by the AEDPA statute of
limitations.
B.

AEDPA Statute of Limitations
Petitions for habeas relief in federal court collaterally attacking state court

convictions are governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA). AEDPA contains a one-year statute of limitations. Specifically, 28
U.S.C. § 2244(d) provides in relevant part:
(d)
(1) A 1-year period of limitation shall apply to an application for
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest ofC
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review;
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(D) the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
See 28 U.S.C. ' 2244(d)(1) and (2).
A judgment or state conviction is final, for purposes of commencing the
statute of limitation period, at A(1) either the conclusion of all direct criminal
appeals in the state system, followed by either the completion or denial of
certiorari proceedings before the United States Supreme Court; or (2) if certiorari
was not sought, then by the conclusion of all direct criminal appeals in the state
system followed by the expiration of the time allotted for filing a petition for the
writ.@ Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). The time allotted for
filing a petition for writ of certiorari with the Supreme Court is ninety days. Jihad
v. Hvass, 267 F.3d 803, 804 (8th Cir. 2001).
The statute of limitation for § 2254 petitions is subject to tolling. See 28
U.S.C. ' 2244(d)(2). This one-year statute of limitation period is tolled, or does not
include, the time during which a properly filed application for state post-conviction
relief or other collateral review is pending in state court. Faulks v. Weber, 459
F.3d 871, 873 (8th Cir. 2006); 28 U.S.C. ' 2244(d)(2). The phrase Apost-conviction
or other collateral review@ in § 2254’s tolling provision encompasses the Adiverse
terminology that different States employ to represent the different forms of
collateral review that are available after a conviction.@ Duncan v. Walker, 533 U.S.
167, 177 (2001). Thus, § 2254=s tolling provision Aapplies to all types of state
collateral review available after a conviction.@ Id.
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State collateral or post-conviction proceedings Aare >pending= for the period
between the trial court=s denial of the [post-conviction relief] and the timely filing of
an appeal from it.@ Maghee v. Ault, 410 F.3d 473, 475 (8th Cir. 2005) (citing
Peterson v. Gammon, 200 F.3d 1202, 1203 (8th Cir. 2000)); see also Johnson v.
Kemna, 451 F.3d 938, 939 (8th Cir. 2006) (an application for state post-conviction
review is pending until a mandate is issued).
However, state proceedings are not pending for the ninety-day period
Afollowing the final denial of state post-conviction relief, the period during which an
unsuccessful state court petitioner may seek a writ of certiorari from the United
States Supreme Court.@ Jihad, 267 F.3d at 805. Additionally, A[s]tate proceedings
are not pending during the time between the end of direct review and the date an
application for state [post-conviction relief] is filed.@ Maghee, 410 F.3d at 475
(citing Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001)). In short, the oneyear statute of limitations begins to run after the state conviction is final, is tolled
while state habeas proceedings are pending, and then begins running again when
state habeas proceedings become final. Curtiss v. Mount Pleasant Corr. Facility,
338 F.3d 851, 853 (8th Cir. 2003).
The court may raise the statute of limitations issue sua sponte. Day v.
McDonough, 547 U.S. 198, 209 (2006). The court must, before acting on its own
initiative to dismiss the federal petition based on the AEDPA statute of limitations,
Aaccord the parties fair notice and opportunity to present their positions.@ Day,
547 U.S. at 210. Further, the court must Aassure itself that the Petitioner is not
significantly prejudiced by the delayed focus on the limitation issue, and

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determine whether the interests of justice would be better served by addressing
the merits or dismissing the petition as time barred.@ Id.1
Accordingly, the court will order the parties to show cause why this federal
petition should not be dismissed as untimely.
CONCLUSION and ORDER
With the above general principles in mind, and having preliminarily
reviewed Mr. Cottier’s § 2254 petition, IT IS ORDERED:
(1) The Clerk of Court is directed to serve upon the Attorney General of the
State of South Dakota, copies of Mr. Cottier’s petition (Docket 1) and this
Order;
(2) On or before February 10, 2017, the parties shall file briefs,
documentation, and/or other appropriate authority showing cause why
Mr. Cottier’s federal habeas petition, filed January 12, 2017, should not
be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1) and (2).
(3) Respondents shall provide a complete chronology of post-judgment
events and provide all relevant state court files.
DATED this 12th day of January, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

The Day Court did not displace the district court’s duty pursuant to Rule
4, to screen and dismiss, if indicated, a petition that is clearly barred by the
AEDPA statute of limitations. Day, 547 U.S. at 207-10.
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