Readd v. Dooley et al

Filing 27

ORDER Dismissing Case and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 7/14/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 14-5091-JLV

MICHAEL READD,
Petitioner,

ORDER

vs.
WARDEN ROBERT DOOLEY, Mike
Durfee State Prison, and
MARTY JACKLEY, Attorney General of
the State of South Dakota,
Respondents.
INTRODUCTION

On December 18, 2014, petitioner Michael Readd, an inmate at the
Michael Durfee State Prison in Springfield, South Dakota, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket 1). Pursuant to a
standing order of October 14, 2014, the matter was referred to United States
Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). On
February 5, 2015, Judge Duffy filed an order directing Mr. Readd to file his
§ 2254 case on a standard § 2254 petition provided by the Clerk of Court.
(Docket 8 at p. 4). On February 23, 2015, Mr. Readd filed an amended
petition. (Docket 10). On February 26, 2015, Magistrate Judge Duffy directed
service of Mr. Readd’s petitions on the respondents and required the parties on
or before March 27, 2015, to show cause why Mr. Readd’s federal petition
“should not be dismissed as untimely pursuant to 28 U.S.C. §2244(d)(1).”
(Docket 11 at p. 6). On March 9, 2015, Mr. Readd filed a brief in support of his
argument as to why his federal petition should not be dismissed as untimely.

(Docket 14). On March 25, 2015, the respondents filed their response urging
the magistrate judge to dismiss Mr. Readd’s petition “with prejudice for
untimeliness.” (Docket 12 at p. 13). On November 19, 2015, the respondents
filed a motion seeking dismissal of Mr. Readd’s petition “for failure to abide by
the statute of limitations . . . 28 U.S.C. § 2244(d).” (Docket 19). The motion to
dismiss incorporated the respondents’ March 25, 2015, arguments. Id.
On November 24, 2015, Judge Duffy issued an amended report
recommending the court grant the respondents’ motion to dismiss. (Docket
22). Pursuant to 28 U.S.C. § 636(b)(1), objections to the amended report and
recommendation were due on or before December 15, 2015. Mr. Readd timely
filed his objections. (Docket 24). Mr. Readd separately filed a response to the
respondents’ motion to dismiss. (Docket 23).
The court reviews de novo those portions of the amended report and
recommendation which are the subject of objections. Thompson v. Nix, 897
F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The 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). Mr. Readd’s objections
are overruled and the amended report and recommendation is adopted in full.
PETITIONER’S OBJECTIONS
Mr. Readd’s objections to the amended report and recommendation are
summarized as follows:
1. The statute of limitations issue was resolved by the court in
March 2015;
2. The statute of limitations does not expire until May 2016;
3. Under the federal rules there is no statute of limitations for
correction of an illegal sentence; and
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4. The report and recommendation is premature.
(Docket 24). Within petitioner’s objections he made a number of other
arguments which can be resolved by the court’s analysis of his objections.
Each objection will be separate analyzed.
1. THE STATUTE OF LIMITATIONS ISSUE WAS RESOLVED BY THE
COURT IN MARCH 2015
Mr. Readd claims the magistrate judge “already visited this issue in
March 2015.” Id. at p. 1. This statement is partially correct, but incomplete.
On February 26, 2015, the magistrate judge sua sponte raised the question of
whether the statute of limitation under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) bars Mr. Readd’s federal habeas petition. By the
magistrate judge’s “preliminary review . . . Readd’s pending § 2254 petition may
be barred by the AEDPA statute of limitations.” (Docket 11 at p. 3).
The AEDPA statute of limitations is set out in 28 U.S.C. § 2244 which
provides in pertinent 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 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 of 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
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Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review;
(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.
28 U.S.C. § 2244(d)(1) and (2).
All the magistrate judge did by the February 26, 2015, order was to
“raise the statute of limitations issue sua sponte.” (Docket 11 at p. 5). After
discussing why the statute of limitations issue raised some concern, the
magistrate judge ordered “the parties to show cause why this federal petition
should not be dismissed as untimely.” Id. The parties were ordered to submit
their arguments on or before March 27, 2015. Id. at p. 6.
Mr. Readd filed his response and a supplement to the magistrate judge’s
order to show cause on March 5, 2015, and April 2, 2015.1 (Dockets 14 & 16).

The court gives Mr. Readd the benefit of the prison mail box rule when
determining the date of filing for his submissions to the court. Fed. R. App. P.
4(c) “establishes a prison mailbox rule and requires prisoners to deposit their
papers with prison authorities by pertinent due dates in order to benefit from
the rule.” Grady v. United States, 269 F.3d 913, 918 (8th Cir. 2001). See also
Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir.1999) (en banc) (For
purposes of § 2244(d)(1), a pro se prisoner’s habeas petition “is filed on the date
it is delivered to prison authorities for mailing to the clerk of the court.”). See
Dockets 14 at p. 2 & 16-1 for the dates Mr. Readd’s submissions were placed
in the prison mail system.
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The respondents filed a detailed submission in response to the magistrate
judge’s order to show cause on March 25, 2015. (Docket 12). Neither the
magistrate judge’s February 26, 2015, order nor the parties’ submissions
resolved the statute of limitations issue.
Mr. Readd’s first objection to the amended report and recommendation is
overruled.
2. THE STATUTE OF LIMITATIONS DOES NOT EXPIRE UNTIL MAY 2016
Mr. Readd argues the magistrate judge erred in concluding the AEDPA
statute of limitations expired in his case. (Docket 24 at p. 1). He argues
“[u]sing the common usage of English words in understanding 28 USC
§ 2244d2 [sic] . . . suggest that the Federal Tolling does not begin until the
State time limit has expired . . . .” Id. (italics omitted). Applying that analysis,
Mr. Readd contends the deadline for filing his federal petition was May 2016.
Id. Because his federal petition was filed in December 2014, Mr. Readd argues
his petition was timely filed. Id.
Mr. Readd’s argument is contrary to settled law on this matter. “A
petitioner has one year from the time a state court judgment becomes final to
apply for a federal writ of habeas corpus.” Curtiss v. Mount Pleasant
Correctional Facility, 338 F.3d 851, 853 (8th Cir. 2003) (referencing 28 U.S.C.
§ 2244(d)(1)(A)). “A [state court] judgment is final, for these purposes, at ‘the
conclusion of all direct criminal appeals in the state system followed by the
expiration of the time allotted for filing a petition for writ of certiorari.’ ” Id.
(citing Williams v. Bruton, 299 F.3d 981, 982 (8th Cir. 2002) (quoting Smith v.
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Bowersox, 159 F.3d 345, 348 (8th Cir.1998)) (brackets omitted). As the court
held in Smith, “[w]hen the Supreme Court denied [Smith’s] plea for writ of
certiorari on November 3, 1997, the one-year statute of limitations began to
run. In this case, Smith has until midnight, November 2, 1998 to petition for
habeas corpus in the federal courts.” Smith, 159 F.3d at 348.
The only interruptions in the running of the federal habeas statute of
limitations are for those time periods when state proceedings are pending and
unresolved in the state system. “Read naturally, the text of the statute must
mean that the statute of limitations is tolled only while state courts review the
application.” Lawrence v. Florida, 549 U.S. 327, 332 (2007). “The statute tolls
. . . while state PCR [post-conviction relief] proceedings are pending. . . . State
PCR proceedings are ‘pending’ for the period between the trial court’s denial of
the PCR and the timely filing of an appeal from it. . . . State proceedings are not
pending during the time between the end of direct review and the date an
application for state PCR is filed.” Maghee v. Ault, 410 F.3d 473, 475 (8th Cir.
2005) (referencing 28 U.S.C. § 2244(d)(2) and citing Painter v. Iowa, 247 F.3d
1255, 1256 (8th Cir. 2001) (other citations omitted).
Contrary to Mr. Readd’s argument, the magistrate judge properly
concluded that “[b]arring any tolling events, Mr. Readd’s AEDPA statute of
limitations would have run on June 24, 2013 (90 days after the affirmance of
his conviction on direct appeal on March 25, 2013). (Docket 22 at p. 7).
The magistrate judge concluded the AEDPA one-year statute of limitation
had expired by the time Mr. Readd’s federal habeas petition was filed on
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December 18, 2014. After giving Mr. Readd the benefit of the doubt as to
whether his sentence reduction motion was a valid state post-conviction relief
filing, the magistrate judge concluded 512 days elapsed from the date of the
last state habeas proceeding and the filing of the federal habeas petition. Id. at
p. 12.
Without resolving the appropriateness of other filings as state postconviction pleadings, the magistrate judge then gave Mr. Readd the benefit of
the doubt and deducted 102 days from the calculation. Id. at p. 14. Even with
this reduction, Mr. Readd’s federal petition was still filed “45 days too late to
comply with the AEDPA statute of limitations . . . .” Id. While Mr. Readd does
not agree with the magistrate judge’s findings, he acknowledges his petition
was “ten (10) days late . . . .” (Docket 24 at p. 2).
The AEDPA statute of limitations sets the outside deadline for filing a
federal habeas petition. Mr. Readd fails to identify any error in the magistrate
judge’s calculations or conclusion that his federal habeas petition was
untimely. (Docket 22 at p. 15).
Mr. Readd’s objection number two to the amended report and
recommendation is overruled.
3. UNDER THE FEDERAL RULES THERE IS NO STATUTE OF
LIMITATIONS FOR CORRECTION OF AN ILLEGAL SENTENCE
Mr. Readd claims his state sentence was “an illegal sentence.” (Docket
24 at p. 2). Without citation to any authority, Mr. Readd asserts he is “seeking
correction of said sentence and under Federal rules there is no time limit to
correcting an illegal sentence.” Id.
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Federal law permits “two main avenues to relief on complaints related to
imprisonment.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Those
avenues of recourse are: “a petition for habeas corpus, 28 U.S.C. § 2254, and
a complaint under the Civil Rights Act . . . 42 U.S.C. § 1983.” Id. A federal
habeas petition “is an attack by a person in custody upon the legality of that
custody, and . . . the traditional function of the writ is to secure release from
illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Congress
determined the federal habeas process is the exclusive remedy when a claim
“goes directly to the constitutionality of [a prisoner’s] physical confinement
itself and seeks either immediate release from that confinement or the
shortening of its duration.” Id. at 489. A section 1983 claim cannot be used to
challenge “the validity of the fact or length of . . . confinement . . . .” Id. at 490.
The AEDPA dictates when and under what circumstances the federal
court system may review a state court conviction. The federal habeas process
is the sole basis by which a district court has subject matter jurisdiction to
permit a petitioner to challenge the validity of his state court conviction.
Unless a petitioner files his federal petition within the one-year statute of
limitations of 28 U.S.C. 2244(d), the district court does not have jurisdiction to
address the petitioner’s claim of an illegal sentence.
Mr. Readd’s third objection to the amended report and recommendation
is overruled.
4. THE REPORT AND RECOMMENDATION IS PREMATURE
Mr. Readd argues the amended report and recommendation is premature
because he was not permitted to file a response in opposition to the
respondents’ motion to dismiss. (Docket 24 at p. 2). This argument is without
merit.
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Mr. Readd fails to acknowledge the procedural history of his case. On
February 26, 2015, the magistrate judge sua sponte raised the statute of
limitations issue. (Docket 11 at p. 5). After discussing why the statute of
limitations issue may create a barrier to consideration of Mr. Readd’s petition,
the magistrate judge directed the parties to file submissions and “show cause
why this federal petition should not be dismissed as untimely.” Id.
Mr. Readd and respondents all complied with the magistrate judge’s
directive. (Dockets 12, 14 & 16). Consistent with their response and prayer
for relief, see Docket 12 at p. 13, respondents filed a separate motion to
dismiss the petition “for failure to abide by the statute of limitations for federal
habeas corpus cases, 28 U.S.C. § 2244(d).” (Docket 19). This motion simply
incorporated the arguments advanced in the earlier submission. Id. Mr.
Readd’s argument on the statute of limitations issue had already been made
and his subsequent answer to the respondents’ motion to dismiss offered no
new information or legal authority. (Docket 23).
Mr. Readd’s fourth objection to the amended report and recommendation
is overruled.
ORDER
The court finds the amended report and recommendation is an accurate
and thorough recitation of the facts and applicable case law. The court further
finds Judge Duffy’s legal analysis is well-reasoned. Having carefully reviewed
the record in this case and good cause appearing, it is
ORDERED that Mr. Readd’s objections and response (Dockets 23 & 24)
to the amended report and recommendation are overruled.

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IT IS FURTHER ORDERED that the amended report and
recommendation (Docket 22) is adopted in full.
IT IS FURTHER ORDERED that the respondents’ motion to dismiss
(Docket 19) is granted.
IT IS FURTHER ORDERED that Mr. Readd’s motion for default judgment
(Docket 26) is denied.
IT IS FURTHER ORDERED that Mr. Readd’s petition (Docket 1) is
dismissed with prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c) and
Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the court declines to issue a certificate of appealability. “When
the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added) (establishing a
two-prong standard). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the case or that the
petitioner should be allowed to proceed further. In such circumstances, no
appeal would be warranted.” Id. The court does not believe reasonable jurists
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would find the court’s ruling debatable or wrong. Accordingly, a certificate of
appealability shall not issue in light of the second prong of the Slack standard.
Although the court declines to issue a certificate of appealability, Mr.
Readd may timely seek a certificate of appealability from the United States
Court of Appeals for the Eighth Circuit under Fed. R. App. P. 22. See Rule
11(a) of the Rules Governing Section 2254 Cases in the United States District
Courts and Fed. R. App. P. 22.
Dated July 14, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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