Fisher v. Dooley et al
ORDER granting 10 Motion to Dismiss; adopting 11 Report and Recommendation; overruling 12 Objection to Report and Recommendation.. Signed by U.S. District Judge Karen E. Schreier on 11/30/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
ERNEST FISHER, JR.,
WARDEN BOB DOOLEY; and MARTY J.
JACKLEY, Attorney General of the State
of South Dakota,
ORDER ADOPTING REPORT AND
Petitioner, Ernest Fisher, Jr., filed a pro se petition for writ of habeas
corpus 28 U.S.C. § 2254. The matter was referred to Magistrate Judge Veronica
L. Duffy for a report and recommendation and she recommended dismissing
the petition for failure to file the petition within the one-year statute of
limitations period under the Antiterrorism and Effective Death Penalty Act
(AEDPA). Docket 11. Fisher timely filed an objection to the report and
recommendation. Docket 12. For the following reasons, the court adopts
Magistrate Judge Duffy’s report as supplemented herein.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. Under 28 U.S.C. § 636(b)(1), the court reviews de novo any
objections to the magistrate judge’s recommendations with respect to
dispositive matters 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”). In conducting its de novo
review, this court may then “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Fisher objects to that portion of the report and recommendation that
finds that the time limits under the AEDPA were not equitably tolled. He
argues that the prison legal aid advised him to take his time, while staying
within the two year state timeline, and secure all the evidence he needed to
support his claims before filing his state habeas. He argues that this advice
“lulled him into inaction.” Docket 12, at 1. He claims he diligently sought
evidence during that two year period and that he filed his state claim as soon
as the evidence was made available to him. Id. After the state court denied him
habeas relief, he “diligently secured and prepared the paper work needed to file
the present Federal Habeas.” Id. at 2. Fisher argues that these facts support
the application of equitable tolling to his federal habeas action.
The Supreme Court has held that the limitations period set forth in
“§ 2244(d) is subject to equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645(2010). “[But] a petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 649 (internal citation and quotations omitted). The Eighth
Circuit Court of Appeals has applied the holding in Holland and found that a
counsel’s miscalculation of a filing deadline is a “garden variety claim” of
neglect that does not warrant equitable tolling. Rues v. Denney, 643 F.3d 618,
622 (8th Cir. 2011).
Here, Fisher alleges that he received bad advice from the prison legal aid.
He has not presented any evidence that he took any further steps to determine
the statute of limitations under the AEDPA. Nor has he presented evidence that
the state took steps to prevent him from timely filing. Fisher’s argument that
the prison legal aid office gave him bad advice is nothing more than a garden
variety claim of neglect and does not rise to the level of an extraordinary
circumstance that stood in the way of his timely filing. The court finds that
Fisher is not entitled to equitable tolling and his petition is time barred under
This court has reviewed Magistrate Judge Duffy’s report and
recommendation de novo and Fisher’s objections. This court adopts the report
and recommendation and dismisses Fisher’s petition for relief with prejudice.
Thus, it is
ORDERED that the report and recommendation (Docket 11) is adopted
in full as supplemented herein. Fisher’s objections to the report and
recommendation (Docket 12) are overruled. Respondents’ motion to dismiss
(Docket 10) is granted. Fisher’s pro se petition for habeas corpus is denied with
IT IS FURTHER ORDERED that based upon the reasons stated and
under Fed. R. App. P. 22(b), the court finds that petitioner has not made a
substantial showing of the denial of a constitutional right. 28 U.S.C.
' 2253(c)(2). Thus, a certificate of appealability is denied.
Dated November 30, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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