Bissonette v. Dooley et al

Filing 5

ORDER for briefs regarding timeliness to be filed by the parties on or before February 3, 2017. Signed by US Magistrate Judge Veronica L. Duffy on 1/3/2017. (CG)

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

5:16-CV-05120-JLV

Petitioner,
ORDER
vs.
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, an inmate at the Mike Durfee State
Prison in Springfield, South Dakota, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. ' 2241, which the court interprets liberally as a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred
to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and the
October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief
District Judge.
BACKGROUND
Mr. Bissonette’s petition indicates he pleaded guilty to one count of
aggregated grand theft by receiving stolen property. Mr. Bissonette was
sentenced in December of 2010, to 8 years’ imprisonment. He did not file a

direct appeal. Mr. Bissonette filed various miscellaneous pleadings in state
court subsequent to his conviction although it is unclear whether he filed a
state habeas action. Mr. Bissonette filed this federal habeas corpus petition on
December 30, 2016.
DISCUSSION
A.

Rule 4
Rule 4 of the Rules Governing Section 2254 Cases states in pertinent

part:
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. Bissonette’s pending § 2254 petition may be barred by the AEDPA statute
of limitations.
B.

AEDPA Statute of Limitations
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:
(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 ofC

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(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
action;
(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
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.
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 A(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 statute of limitation for § 2254 petitions is subject to tolling. See 28
U.S.C. ' 2244(d)(2). This one-year statute of limitation period is tolled, or does
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not include, the time during which a properly filed application for state postconviction 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
Apost-conviction or other collateral review@ in § 2254’s tolling provision
encompasses the Adiverse 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
Aapplies to all types of state collateral review available after a conviction.@ Id.
State collateral or post-conviction proceedings Aare >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
Afollowing 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,
A[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,
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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 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, Aaccord the parties fair notice and opportunity to present their
positions.@ Day, 547 U.S. at 210. Further, the court must Aassure 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.1
Accordingly, the court will order the parties to show cause why this
federal petition should not be dismissed as untimely.
CONCLUSION and ORDER
With the above general principles in mind, and having preliminarily
reviewed Mr. Bissonette’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. Bissonette’s petition and brief
(Dockets 1 and 2) and this Order;
(2) On or before February 3, 2017, the parties shall file briefs,
documentation, and/or other appropriate authority showing cause
why Mr. Bissonette’s federal habeas petition, filed December 30, 2016,
The Day Court did not displace the district court’s duty pursuant to
Rule 4, to screen and dismiss, if indicated, a petition that is clearly barred by
the AEDPA statute of limitations. Day, 547 U.S. at 207-10.
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should not be dismissed as untimely pursuant to 28 U.S.C.
§ 2244(d)(1) and (2).
(3) Respondents shall provide a complete chronology of post-judgment
events and provide all relevant state court files.
DATED this 3rd day of January, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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