Fassett v. Young et al
ORDER directing service upon respondents and ordering the parties to show cause by April 30, 2021 as to issue of timeliness of the petition. Signed by US Magistrate Judge Veronica L. Duffy on 3/31/2021. (CG) Mailed to Petitioner on 3/31/2021. Emailed with petition to service group.(SLW).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
KYLE EUGENE FASSETT,
ORDER FOR SERVICE
AND TO SHOW CAUSE
DARREN YOUNG, and the Attorney
General of the State of South Dakota,
Petitioner, Kyle Eugene Fassett, 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. The pending matter was referred to the
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16,
2014, standing order of the Honorable Karen E. Schreier, United States District
Mr. Fassett seeks to challenge his 2019 conviction for failure to appear.
Mr. Fassett states in his petition that he did not file a direct appeal or a state
habeas petition. Docket No. 1. Mr. Fassett filed this federal habeas corpus
petition on March 31, 2021.
Rule 4 of the Rules Governing Section 2254 Cases states in pertinent
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. Fassett’s pending § 2254 petition may be barred by the statute of
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:
(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 of:
(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
(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
(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
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 “(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 limitations period for § 2254 petitions is subject to statutory 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 “post-conviction or other collateral review” in § 2254’s tolling
provision encompasses the “diverse 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 “applies to all types of state collateral review available after a
State collateral or post-conviction proceedings “are ‘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
“following 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,
“[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 one-year 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 notes the one-year AEDPA statute of limitations is not a
jurisdictional bar. Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003). The
time limit is subject to equitable tolling when “extraordinary circumstances”
beyond a prisoner’s control make it impossible to file a petition on time. Id. A
petitioner seeking equitable tolling must show (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his
way. Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). The decision whether to equitably toll AEDPA’s
limitations period is a fact-intensive inquiry based upon the totality of the
circumstances. Holland, 560 U.S. at 649-50. Equitable tolling represents “an
exceedingly narrow window of relief.” Shoemate v. Norris, 390 F.3d 595, 597
(8th Cir. 2004) (quoting Jihad, 267 F.3d at 805).
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, “accord the parties fair notice and opportunity to present their
positions.” Day, 547 U.S. at 210. Further, the court must “assure itself that
the Petitioner is not significantly prejudiced by the delayed focus on the
limitation issue, and determine whether the interests of justice would be better
served by addressing the merits or dismissing the petition as time barred.” Id.
Accordingly, the court will order the parties to show cause why
Mr. Fassett’s federal petition should not be dismissed as untimely. Both
parties are asked to provide a complete picture to the court of the proceedings
in state court which occurred prior to Mr. Fassett filing his current petition
with this court, including the dates on which pertinent actions took place.
CONCLUSION and ORDER
With the above general principles in mind, and having preliminarily
reviewed Mr. Fassett’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. Fassett’s petition (Docket 1)
and this Order;
(2) On or before April 30, 2021, the parties shall file briefs,
documentation, and/or other appropriate authority showing cause
why Mr. Fassett’s federal habeas petition, filed March 31, 2021,
should not be dismissed with prejudice as untimely.
Mr. Fassett is notified that failure to respond to the above order to
show cause may result in dismissal of his petition in this court.
DATED this 31st day of March, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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