Bissonette v. Dooley et al

Filing 16

ORDER granting 10 Motion to Dismiss; adopting 14 Report and Recommendation; overruling 15 Objection to Report and Recommendation and declining to issue a certificate of appealability. Signed by Chief Judge Jeffrey L. Viken on 9/11/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DANNY D. BISSONETTE,

CIV. 16-5120-JLV

Petitioner,
vs.

ORDER

ROBERT DOOLEY, WARDEN; DAVID
GILBERTSON, CHIEF JUSTICE SOUTH
DAKOTA SUPREME COURT; AND
CRAIG A. PFEIFLE, CIR. COURT
JUDGE-SEVENTH CIR.;
Respondents.
INTRODUCTION
Petitioner Danny D. Bissonette, appearing pro se, filed a petition for a
writ of habeas corpus. (Docket 1). Petitioner is incarcerated at the Mike
Durfee State Prison in Springfield, South Dakota, pursuant to a 2010 South
Dakota state court judgment. (Docket 14 at p. 1). Respondents filed a motion
to dismiss Mr. Bissonette’s petition for failure to abide by the statute of
limitations. (Docket 10).
Pursuant to 28 U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014,
standing order, the petition was referred to United States Magistrate Judge
Veronica L. Duffy. Magistrate Judge Duffy filed a report and recommendation
concluding the court should grant respondents’ motion and dismiss Mr.
Bissonette’s petition because it is not timely. (Docket 10 at p. 8). Mr.

Bissonette filed timely objections to Magistrate Judge Duffy’s report and
recommendation. (Docket 15).
ANALYSIS
The court reviews de novo those portions of the 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. Bissonette’s
objections are overruled and the report and recommendation is adopted in full.
Mr. Bissonette sets forth several objections to the magistrate judge’s
report and recommendation. (Docket 15). His core objection is that the
magistrate judge erred in construing his petition for a writ of habeas corpus as
a petition brought under 28 U.S.C. § 2254. Id. The decision to construe the
petition that way formed the basis for the recommendation to dismiss Mr.
Bissonette’s petition. (Docket 14 at pp. 6-8). The court must address this
threshold issue at the outset.
Mr. Bissonette’s petition states it was filed pursuant to 28 U.S.C. § 2241.
(Docket 1 at p. 1). In his petition, Mr. Bissonette asserts he is a state prisoner.
Id. He explains he pled guilty to aggregated grand theft by receiving stolen
property and a state circuit court sentenced him to eight years in prison. Id.
“Section 2241 bestows upon district courts the power to grant habeas
corpus relief to a ‘prisoner’ who ‘is in custody in violation of the Constitution or
laws or treaties of the United States.’ ” In re Wright, 826 F.3d 774, 778 (4th
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Cir. 2016) (quoting 28 U.S.C. § 2241(a), (c)(3)). “Section 2254, on the other
hand, applies to a subset of those to whom § 2241(c)(3) applies—it applies to ‘a
person in custody pursuant to the judgment of a State court’ who is ‘in custody
in violation of the Constitution or laws or treaties of the United States.’ ”
Thomas v. Crosby, 371 F.3d 782, 786 (11th Cir. 2004) (quoting 28 U.S.C.
§ 2254(a)) (emphasis in original). “The Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996 requires a state prisoner seeking federal habeas
corpus relief to file a petition for federal habeas relief within one year after a
state conviction becomes final.” Faulks v. Weber, 459 F.3d 871, 873 (8th Cir.
2006) (citing 28 U.S.C. § 2244(d)(1)(A)). If a prisoner properly seeks habeas
corpus relief under § 2241, there is no statute of limitations applicable to the
petition. See Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007) (“[T]here is no
statute of limitations applicable to a federal prisoner’s filing a section 2241
petition.”); see also Mathena v. United States, 577 F.3d 943, 945 (8th Cir.
2009) (recognizing Morales’ holding but not deciding the issue).
In a United States District Court, state prisoners “can only obtain habeas
relief through § 2254, no matter how [their] pleadings are styled . . . .” Crouch
v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001); see Abordo v. O’Dell, 23 Fed.
Appx. 615, at *1 (8th Cir. Dec. 4, 2001) (“Although Mr. Abordo labeled his suit
as one brought under section 2241, the only vehicle for his attack on his
confinement is 28 U.S.C. § 2254, because he is in custody pursuant to a state
court judgment.”). “A state prisoner cannot evade the procedural requirements
of § 2254 by filing something purporting to be a § 2241 petition. If the terms of
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§ 2254 apply to a state habeas petitioner—i.e., if he is ‘in custody pursuant to
the judgment of a State court”—then we must apply its requirements to him.”
Thomas, 371 F.3d at 787.
Because Mr. Bissonette is a state prisoner, the only path for the habeas
corpus relief he seeks is § 2254. See Crouch, 251 F.3d at 722-23. The court
finds it must apply the procedural requirements for § 2254 petitions to Mr.
Bissonette. See id.; Thomas, 371 F.3d at 787.
One procedural aspect of a § 2254 petition is it must be filed within the
one-year statute of limitations. See Faulks, 459 F.3d at 873 (citing 28 U.S.C.
§ 2244(d)(1)(A)). “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)
(citing 28 U.S.C. § 2244(d)(1)(A)). The state court judgment is final at “either
(i) 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 (ii) 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). “Under 28 U.S.C. § 2244(d)(2),
[the one-year statutory] period does not include the time during which a
properly filed application for state collateral review is ‘pending’ in the state
courts.” Faulks, 459 F.3d at 873.

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The record is clear that Mr. Bissonette did not file anything related to
challenging his state court conviction until 2015. (Docket 14 at p. 5). His
deadline for direct appeal of the state court judgment was January 28, 2011.
Id. One year from that day, January 28, 2012, was the last day to file a
petition in this court for habeas corpus relief. Id. Because Mr. Bissonette did
not submit any post-conviction filings until more than one year after his state
court judgment became final, his § 2254 petition is not timely. See Curtiss,
338 F.3d at 853 (citing 28 U.S.C. § 2244(d)(1)(A)).
“The one-year time limit in § 2244(d)(1) is a statute of limitations and not
a jurisdictional bar[, so it] may be equitably tolled.” Baker v. Norris, 321 F.3d
769, 771 (8th Cir. 2003). “Under the doctrine of equitable tolling, the AEDPA’s
statutory limitations period may be tolled if a petitioner can show that (1) he
has been diligently pursuing his rights and (2) an extraordinary circumstance
stood in his way.” White v. Dingle, 616 F.3d 844, 848 (8th Cir. 2010) (citing
Holland v. Florida, 560 U.S. 631 (2010)). “Equitable tolling is a flexible
procedure that involves both recognition of the role of precedent and an
‘awareness of the fact that specific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate case.’ ” Id. at 84748 (quoting Holland, 560 U.S. at 632).
“A petitioner acts with diligence when, for example, he writes letters to
his attorney asking her to file a habeas petition, contacts the court to learn
about the status of his case, seeks to have his attorney removed for failure to
pursue his case, and files a pro se petition the very day that he learns it is late.
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In contrast, a petitioner does not act diligently when he simply assumes that
his attorney is working on his case even though she does not respond to his
communication and hangs up on him when he calls.” Williams v. Kelley, 830
F.3d 770, 773 (8th Cir. 2016) (internal citations omitted). Mr. Bissonette wrote
to his attorney requesting she file an appeal. (Docket 1-3). This alone is
insufficient to meet the equitable tolling requirement of diligently pursuing
rights. See Williams, 830 F.3d at 773. Mr. Bissonette’s conduct is closer to
what Williams describes as “not act[ing] diligently . . . .” Id.
Even if Mr. Bissonette did show diligence, no “extraordinary
circumstance stood in his way.” White, 616 F.3d at 848. “The extraordinary
circumstance that prevents a petitioner from timely filing his federal
application must be external to the petitioner and not attributable to his
actions.” Johnson v. Hobbs, 678 F.3d 607, 611 (8th Cir. 2012). The only facts
going to this issue are that Mr. Bissonette asked his attorney to appeal his
conviction and the attorney did not file an appeal. (Dockets 1 at p. 3 & 1-3).
“An attorney’s negligence or mistake is not generally an extraordinary
circumstance, however serious attorney misconduct, as opposed to mere
negligence, may warrant equitable tolling.” Muhammad v. United States, 735
F.3d 812, 816 (8th Cir. 2013) (internal quotation marks omitted).
In Sosa-Jimenez v. United States, the petitioner’s “counsel told him, at
the time of his sentencing, that he would file his notice of appeal[,]” and he
“wrote his attorney ‘many times’ about the status of his appeal but ‘never heard
anything.’ ” Sosa-Jimenez v. United States, No. C11-4032, 2014 WL 559022,
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at *7 (N.D. Iowa Feb. 11, 2014). The United States District Court for the
Northern District of Iowa determined those facts “d[id] not come close to
alleging the type of egregious attorney misconduct identified in Muhamm[a]d,
Holland, or Martin . . . .” Id. (citing Holland, 560 U.S. at 653; Muhammad, 735
F.3d at 816; United States v. Martin, 408 F.3d 1089, 1094 (8th Cir. 2005)).
The Sosa-Jimenez court based its finding on the absence of any “allegation of
deceit, misrepresentation, or other serious misconduct on the part of [the]
attorney . . . .” Id. In this case, the facts supporting an extraordinary
circumstance fall short of the facts in Sosa-Jimenez. All Mr. Bissonette claims
is he asked his attorney to appeal and the attorney did not do so—he does not
allege additional requests he made of his attorney or any deception on the part
of his lawyer. (Dockets 1 & 1-3). Just as the attorney conduct in SosaJimenez did not constitute an extraordinary circumstance, Mr. Bissonette fails
to meet this legal standard necessary for equitable tolling. See Muhammad,
735 F.3d at 816; Sosa-Jimenez, 2014 WL 559022, at *7.
Because equitable tolling does not apply in Mr. Bissonette’s case and he
filed his petition for habeas corpus relief after the statute of limitations passed,
the court dismisses his petition as time-barred. The court does not address
Mr. Bissonette’s remaining objections to the report and recommendation
because his petition is not timely.
ORDER
Based on the above analysis, it is
ORDERED that Mr. Bissonette’s objections (Docket 15) are overruled.
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IT IS FURTHER ORDERED that the report and recommendation (Docket
14) is adopted in full.
IT IS FURTHER ORDERED that respondents’ motion to dismiss is
granted (Docket 10).
IT IS FURTHER ORDERED that Mr. Bissonette’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). “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 would find the court’s ruling debatable or
wrong. Consequently, the court declines to issue a certificate of appealability.

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Mr. Bissonette may timely seek a certificate of appealability from the
United States Court of Appeals for the Eight Circuit under Fed. R. App. P. 22.
See Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Court and Fed. R. App. P. 22.
Dated September 11, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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