Pasek v. Young et al

Filing 4

ORDER for service; briefs on the issue of timeliness due from the parties by April 16, 2018. Signed by US Magistrate Judge Veronica L. Duffy on 3/16/2018. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMES GREGORY PASEK,

5:18-CV-05020-JLV

Petitioner,
vs.

ORDER

DARIN YOUNG, and THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA,
Respondents.

INTRODUCTION
Petitioner, James Gregory Pasek, an inmate at the South Dakota State
Penitentiary in Sioux Falls, South Dakota, has filed a pro se 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 Jeffery L. Viken, Chief District
Judge.
BACKGROUND
On November 15, 2003, Mr. Pasek was found guilty by a jury of first
degree robbery, two counts of grand theft and grand theft by possession of
stolen property. Thereafter a court trial was held and Mr. Pasek was found to
be a habitual offender. On December 8, 2003, Mr. Pasek was sentenced to life
imprisonment without parole for first degree robbery, 15 years’ imprisonment
for each grand theft charge, and 15 years’ imprisonment for the grand theft by

possession of stolen property charge. Said sentences were all ordered to be
served concurrent to each other, as well as concurrent to his federal sentence
imposed in the District of Wyoming. See Docket 1 and attachments. Mr. Pasek
filed a direct appeal which was denied by the South Dakota Supreme Court on
December 22, 2004.
On September 20, 2016, nearly twelve years after his direct appeal was
denied, Mr. Pasek filed a state habeas petition. That petition was denied by a
state circuit court judge on September 28, 2016. Mr. Pasek’s request for
reconsideration was denied by the South Dakota Supreme Court on January
23, 2017. See Docket 1 and attachments. Mr. Pasek filed the instant federal
petition with this court on March 15, 2018.
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. Pasek’s pending § 2254 petition may be barred by the AEDPA statute of
limitations.
2

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
(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
3

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
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
4

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,
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
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

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.
1

5

equitable tolling when Aextraordinary 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. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
Accordingly, the Court will order the parties to show cause why this
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. Pasek filing his current petition with this court, including
the dates on which pertinent actions took place.
CONCLUSION
With the above general principles in mind, and having preliminarily
reviewed Mr. Pasek’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. Pasek’s filings and this order;
(2) On or before April 16, 2018, both parties shall file briefs,
documentation, and/or other appropriate authority showing cause
why Mr. Pasek’s federal habeas petition, filed March 15, 2018, should
not be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1)
and (2).
Mr. Pasek is hereby advised that dismissal of his petition may
result unless a satisfactory showing is made as to timeliness
and/or tolling, either equitable or statutory.
DATED this 16th day of March, 2018.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
6