Steele v. Clark et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PHILLIP D. STEELE,
Petitioner,
vs.
DANIEL SULLIVAN1, WARDEN OF THE
SOUTH DAKOTA STATE
PENITENTIARY; AND THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA,
Respondents.
4:21-CV-04171-LLP
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 of Phillip D. Steele, a person incarcerated
pursuant to a judgment of a South Dakota state court. See Docket No. 1. Now
pending is respondent’s motion to dismiss Mr. Steele’s petition without holding
an evidentiary hearing. See Docket No. 4. Mr. Steele opposes the motion. See
Docket No. 6. This matter has been referred to this magistrate judge for a
recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the August
11, 2021, standing order of the Honorable Lawrence L. Piersol, United States
District Judge.
1 Mr. Steele originally named Doug Clark, former warden of the South Dakota
State Penitentiary, as a respondent. Mr. Clark has been separated from that
office. According to Federal Rule of Civil Procedure 25(d), the court substitutes
Mr. Sullivan in his place.
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FACTS
Mr. Steele has a number of state felony convictions. The state conviction
which he challenges in this federal habeas petition is his conviction for escape.
Docket No. 1 at p. 1. Respondent argues that any federal habeas petition
premised on the unconstitutionality of Mr. Steele’s escape conviction is time-
barred and should be dismissed with prejudice. Docket No. 5 at p. 8. The
following are the facts relevant to respondent’s timeliness argument.2
In January 1992, Mr. Steele was charged with second-degree rape. State
v. Steele, 510 N.W.2d 661, 663 (S.D. 1994). He was convicted after an April
1992 jury trial and he appealed his conviction to the state supreme court. Id.
at 663-64. That court reversed and remanded for a new trial on January 5,
1994. Id. at 667. Following remand, Mr. Steele was again convicted of second-
degree rape at a jury trial and he was sentenced to 107 years in prison in 1996.
See Docket Nos. 5-1, 5-2.
In 1993, while Mr. Steele was in custody of the state following his first
conviction and while his first direct appeal was proceeding, Mr. Steele was
charged with the crime of escape. Docket No. 1 at p. 1. Mr. Steele alleges the
charge was wrongful because he was on the Pine Ridge Indian Reservation at
the time of the event and he is an enrolled member of the Oglala Sioux
Tribe. Id.
2 Respondent presents five separate bases for dismissing Mr. Steele’s habeas
petition without holding an evidentiary hearing. See Docket No. 5 at pp. 7-8.
Because the timeliness argument is dispositive, the court addresses only that
argument.
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Respondent alleges Mr. Steele was given a funeral furlough to the
reservation and failed to return to the custody of the state. Docket No. 5 at
p. 3.3 Mr. Steele was sentenced on February 22, 1996, for the crime of escape,
to which he pleaded guilty. Docket No. 5-3. He was sentenced to 10 years’
imprisonment with the sentence to run concurrently with his rape sentence.
Id. Mr. Steele did not appeal his escape conviction or sentence.
On August 24, 2009, Mr. Steele filed his first state habeas petition
collaterally attacking his escape conviction.4 Docket No. 5-20. Mr. Steele,
through counsel, then filed his instant § 2254 petition in this court on October
21, 2021. Docket No. 1. Respondent moves to dismiss the petition with
prejudice without holding an evidentiary hearing because Mr. Steele filed his
federal petition outside the one-year statute of limitations for § 2254 petitions.
See Docket Nos. 4, 5.
3 Mr. Steele appears to agree with this description as he states in his state
habeas petition collaterally attacking his escape conviction that “Petitioner was
lawfully authorized to attend a family death funeral on his home Indian
reservation, Pine Ridge, South Dakota, where the said Escape was alleged . .
. .” See Docket No. 5-20 at p. 1.
4 Mr. Steele had filed previous state habeas petitions, but all of those petitions
were collateral attacks on his rape conviction. They did not collaterally attack
his escape conviction. See Docket Nos. 5-5 at p. 2, ¶ 14 (discussing 2000 state
habeas petition); 5-8 (second state habeas petition dated 2004); and 5-14 (third
state habeas petition dated 2009). Even if these petitions could affect the
running of the AEDPA statute of limitations on Mr. Steele’s escape conviction,
his § 2254 petition in this court would still be untimely because none of these
state habeas petitions were filed within one year of April 1996. Wood v.
Milyard, 566 U.S. 463, 468 (2012).
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DISCUSSION
A. Scope of a § 2254 Petition
A state prisoner who believes he is incarcerated in violation of the
Constitution or laws of the United States may file a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”) constrains federal courts to exercise only a “limited and
deferential review of underlying state court decisions.” Osborne v. Purkett, 411
F.3d 911, 914 (8th Cir. 2005) (citing Lomholt v. Iowa, 327 F.3d 748, 751 (8th
Cir. 2003). A federal court may not grant a writ of habeas corpus unless the
state court’s adjudication of a claim “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law.”
28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly
established federal law if it “applies a rule that contradicts the governing law
set forth in [Supreme Court] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [the Court’s] precedent.” Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A federal habeas court may not issue the writ
merely because it concludes the state court applied the clearly established
federal law erroneously or incorrectly. Id. at 411. “Rather, that application
must also be unreasonable.” Id. (emphasis added).
The state court’s factual findings are presumed to be correct, and a
federal habeas court may not disregard the presumption unless specific
statutory exceptions are met. Thatsaphone v. Weber, 137 F.3d 1041, 1045
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(8th Cir. 1998); 28 U.S.C. § 2254(e). A federal habeas court must “more than
simply disagree with the state court before rejecting its factual determinations.
Instead, it must conclude that the state court’s findings lacked even ‘fair
support’ in the record.” Marshall v. Lonberger, 459 U.S. 422, 432 (1983).
B. Statute of Limitations Under 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 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 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).
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A judgment or state conviction is final, for purposes of commencing the
statute of limitation period, 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).
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 limitations period for § 2254 petitions is subject to statutory 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
post-conviction 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 “post-conviction or other collateral review” in § 2254’s tolling
provision encompasses the “diverse 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 “applies to all types of state collateral review available after a
conviction.” Id.
State collateral or post-conviction proceedings “are ‘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.
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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
“following 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,
“[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. Mt. Pleasant Corr. Fac., 338 F.3d 851, 853 (8th Cir. 2003).
The court notes 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 equitable tolling when “extraordinary 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. Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). The decision whether to equitably toll AEDPA’s
limitations period is a fact-intensive inquiry based upon the totality of the
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circumstances. Holland, 560 U.S. at 649-50. Equitable tolling represents “an
exceedingly narrow window of relief.” Shoemate v. Norris, 390 F.3d 595, 597
(8th Cir. 2004) (quoting Jihad, 267 F.3d at 805).
Here, Mr. Steele’s federal petition is clearly untimely. His state court
conviction became final for purposes of AEDPA’s limitation period on March 23,
1996. AEDPA became law one month later on April 24, 1996. Wood v.
Milyard, 566 U.S. 463, 468 (2012). When a person’s conviction and sentence
became final prior to the passage of AEDPA, as Mr. Steele’s did, the person has
one year from AEDPA’s effective date to file a federal habeas petition under
§ 2254 or to file a state habeas petition in order to toll the running of the
AEDPA statute of limitations. Id.
Mr. Steele did neither. Instead, he waited 12 years to file his first state
habeas petition collaterally attacking his escape conviction. By that time, his
AEDPA limitations period had already expired. When a state habeas petition is
filed after the AEDPA limitations period has already expired, the state habeas
petition cannot toll the running of the AEDPA statute of limitations. Curtiss,
338 F.3d at 853 (filing of state habeas petition could not toll AEDPA limitations
period where AEDPA limitations period had already expired before the filing of
the state petition).
As noted above, the statute of limitations is subject to equitable tolling,
but it is Mr. Steele’s burden to demonstrate that some extraordinary
circumstance external to him prevented him from timely filing and that he
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worked diligently to file his petition. Holland, 560 U.S. at 649. Mr. Steele has
not carried this burden.
Mr. Steele only cites to Wood, Landgraf v. USI Film Products, 511 U.S.
244 (1994); and 8 U.S.C. § 2244(d), in support of his rebuttal to respondent’s
motion that “the procedural limitation of timeliness does not preclude this
Court from considering Steele’s Application on the merits.” Docket No. 6 at pp.
2, 6-8. These authorities to not help Mr. Steele. Landgraf merely holds that
provisions of the Civil Rights Act of 1991 granting the right to compensatory
and punitive damages did not apply to cases which were pending on appeal at
the time Congress passed the 1991 legislation. Landgraf, 511 U.S. at 285-86.
But, as indicated above, the Supreme Court held that AEDPA did apply to state
court convictions that became final prior to passage of AEDPA and that, for
such cases, the persons could bring a habeas petition under § 2254 within one
year of the effective date of AEDPA. Wood, 566 U.S. at 468. This Mr. Steele
failed to do.
Mr. Steele asserts that Wood stands for the proposition that this court
can ignore the respondent’s assertion of a statute of limitations defense if the
court wishes. Docket No. 6 at pp. 6-8. That is actually the opposite of what
Wood stands for. The question in Wood was whether the court could raise the
statute of limitations defense sua sponte if the state-respondent failed to raise
the affirmative defense. Wood, 566 U.S. at 468. The Court held that, because
the AEDPA limitations period implicates federal-state comity values beyond the
concerns of the immediate parties, the court in its discretion could consider a
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statute of limitations bar to a § 2254 habeas petition even if the state-
respondent had forfeited that affirmative defense by failing to raise it. Id. at
471-73.
Mr. Steele’s counsel is correct that a statute of limitations issue is not
jurisdictional and is subject to equitable tolling, as discussed above. But as
also discussed above, Mr. Steele has not carried his burden to demonstrate
that equitable tolling should apply in his case. For all these reasons the court
recommends dismissing Mr. Steele’s petition as untimely.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends granting respondent’s motion to dismiss [Docket
No. 4] and dismissing Mr. Steele’s petition [Docket No. 1] with prejudice and
without holding an evidentiary hearing.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
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district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 21st day of December, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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