Riley v. Weber et al

Filing 8

ORDER granting 2 Motion to Stay. Signed by US Magistrate Judge Veronica L. Duffy on 4/18/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMES DUANE RILEY,

5:15-CV-05073-JLV

Petitioner,
ORDER GRANTING PETITIONER’S
MOTION TO STAY

vs.
DOUGLAS WEBER, MIKE DURFEE
STATE PRISON, SPRINGFIELD, SD;
AND MARTY JACKLEY, THE
ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA;

DOCKET NO. 2

Respondents.

This matter is before the court on petitioner James Riley’s pro se habeas
petition pursuant to 28 U.S.C. § 2254. See Docket No. 1. Mr. Riley is in the
custody of the State of South Dakota pursuant to a conviction from a South
Dakota state court. Id. This matter was referred to this magistrate judge
pursuant to the October 16, 2014, standing order of Chief Judge Jeffrey L.
Viken and 28 U.S.C. § 636(b)(1).
Mr. Riley acknowledges he has not finished exhausting his habeas claims
before the state courts of South Dakota. He alleges the following sequence of
events post-judgment in his case:
April 10, 2012—Mr. Riley was sentenced in state court
May 4, 2012—Mr. Riley filed a direct appeal of his conviction
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December 18, 2013—South Dakota Supreme Court affirmed his
conviction
March 18, 2014—Mr. Riley petitioned for a writ of certiorari from the
United States Supreme Court
May 27, 2014—Supreme Court denied Mr. Riley’s petition for certiorari
November 17, 2014—Mr. Riley filed a state habeas petition in state
circuit court
December 4, 2014—state circuit court denied habeas relief
January 2, 2015—Mr. Riley sought a certificate of probable cause from
the South Dakota Supreme Court
June 15, 2015—the South Dakota Supreme Court issued a certificate of
probable cause
August 12, 2015—Mr. Riley filed his appeal of the denial of habeas relief
with the South Dakota Supreme Court
See Docket No. 2.
Despite knowing that he has not exhausted his habeas claims in state
court (because the South Dakota Supreme Court has not ruled on his appeal
yet), Mr. Riley nevertheless filed his federal habeas petition with this court. He
explains he is uncertain about whether his state habeas petition will be
deemed timely or how the statute of limitations will be applied concerning his
federal petition. See Docket No. 2. Accordingly, he filed his federal habeas
petition “protectively” and seeks an order staying any action on his federal
petition until the state courts have finished review of his habeas claims there.
In Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005), the Court ruled that
although the federal statute of limitations applicable to § 2254 habeas petitions
was tolled during the pendency of a properly filed state petition collaterally
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attacking a state conviction, if the state petition was filed untimely, tolling did
not occur. The petitioner in Pace argued this was unfair because “a ‘petitioner
trying in good faith to exhaust state remedies may litigate in state court for
years only to find out at the end that he was never “properly filed,” ’ [i.e.
because the state petition was untimely] and thus that his federal habeas
petition is time barred.” Id. at 416. The Court responded that “[a] prisoner
seeking state postconviction relief might avoid this predicament . . . by filing a
‘protective’ petition in federal court and asking the federal court to stay and
abey the federal habeas proceedings until state remedies are exhausted.” Id.
Mr. Riley relies on Pace for the premature filing of his petition here in this court
and the subsequent motion to stay. See Docket No. 2.
The court directed respondents to file a response to Mr. Riley’s motion to
stay. See Docket No. 5. Instead of doing so, they filed their own motion to
stay. See Docket No. 6. Respondents have never filed a response to Mr. Riley’s
motion or the facts and authority set forth therein.
Good cause appearing, it is hereby
ORDERED that Mr. Riley’s motion to stay [Docket No. 2] is granted. The
parties shall immediately advise the court when the South Dakota Supreme
Court renders a decision on Mr. Riley’s pending appeal before that court.
DATED this 18th day of April, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
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