Mayen v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PETER MAYEN,
Petitioner,
vs.
WARDEN FLUKE, JASON
RAVENSBORG, THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA;
Respondents.
4:21-CV-04145-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 of Peter Mayen, a person incarcerated
pursuant to a judgment of a South Dakota state court. See Docket No. 1.
After a preliminary review according to Rule 4 of the Rules Governing Habeas
Cases, the court issued an order to show cause asking both parties to address
why Mr. Mayen’s petition should not be dismissed for untimeliness. See
Docket No. 7. Mr. Mayen responded to the court’s order to show cause. See
Docket No. 9.
Now pending is respondents’ motion to dismiss Mr. Mayen’s petition
without holding an evidentiary hearing. See Docket No. 11. Mr. Mayen has
not responded to the motion to dismiss. This matter was referred to this
magistrate judge for a recommended disposition pursuant to 28 U.S.C.
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§ 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen
E. Schreier, United States District Judge.
FACTS
Mr. Mayen pleaded guilty to first-degree manslaughter in connection with
the shooting and killing of his neighbor, Bruce Walters. State v. Mayen, CR 11-
6181, Second Judicial Circuit, at pp. 1, 41-49. He was sentenced on November
6, 2012, to 80 years in the South Dakota State Penitentiary. Id. at p. 345-46.1
Mr. Mayen appealed to the South Dakota Supreme Court. Id. at p. 347.
The appellate court affirmed Mr. Mayen’s conviction and sentence on
October 7, 2013. State v. Mayen, Appeal No. 26575 (S.D. Oct. 7, 2013).
Mr. Mayen had 90 days from that date to file a petition for a writ of certiorari
before the United States Supreme Court. SUP. CT. R. 13. The deadline for
Mr. Mayen to file a petition for certiorari was January 5, 2014.
Mr. Mayen filed his first state court habeas petition on April 13, 2016,
more than two years after the expiration of the time for seeking a writ of
certiorari. Mayen v. Dooley, Civ. 16-919 at pp. 1-2 (Second Judicial Circuit).
The state habeas court denied relief on May 1, 2020, but granted Mr. Mayen a
certificate of probable cause. Id. at pp. 297-305, 318. Mr. Mayen then
pursued an appeal of the denial of habeas relief to the South Dakota Supreme
Court. Id. at p. 322. That court affirmed the trial court’s denial of habeas
relief on June 1, 2021. Mayen v. Dooley, No. 29339 (S.D. Jun. 1, 2021)
1 The written judgment was filed on November 14, 2012.
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Mr. Mayen filed the instant petition for habeas relief pursuant to § 2254 before
this court on August 17, 2021. Docket No. 1.
Respondent now moves to dismiss Mr. Mayen’s petition with prejudice
because he failed to file the petition within the one-year statute of limitations.
See Docket No. 11. As indicated above, Mr. Mayen responded to the court’s
order to show cause, Docket No. 9, but has not filed a response to the
respondent’s motion to dismiss. The time for filing a response has expired.
DISCUSSION
A. Scope of a § 2254 Petition
A person incarcerated by a state who believes he is imprisoned 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”) applies to § 2254 petitions and 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]
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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
(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;
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(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 “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).
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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.
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).
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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
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).
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, “accord the parties fair notice and opportunity to present their
positions.” Day, 547 U.S. at 210. Further, the court must “assure 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.
The above law was reproduced in this court’s order to show cause so that
Mr. Mayen would know what the law was. See Docket No. 7. That order also
notified Mr. Mayen that his petition could be dismissed for untimeliness if he
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failed to satisfactorily explain why his petition was timely or why equitable
tolling should be applied to his case. Id. Although Mr. Mayen filed a response
to this court’s order to show cause, in that response, he argues only the merits
of his habeas claims. He does not address the statute of limitations or
equitable tolling. See Docket No. 9.
It is clear that Mr. Mayen’s § 2254 is untimely. Under the above law, his
AEDPA statute of limitations began running on January 5, 2014. From that
date, he had one year—until January 5, 2015—to file his federal habeas
petition or to file a state habeas petition and thus toll the running of his
AEDPA statute of limitations. 28 U.S.C. § 2244(d). He did neither. Instead,
Mr. Mayen filed a state habeas petition over two years later on April 13, 2016,
but, by then, his federal AEDPA limitations period had already expired.
Because the AEDPA limitations period had already expired, the state habeas
petition could not act to toll the federal limitations period. 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).
In addition, Mr. Mayen does not address equitable tolling at all. It is his
burden to establish that extraordinary circumstances outside his control
caused him to wait over two years before filing his state habeas petition and
that he acted diligently in pursuing his rights. Holland, 560 U.S. at 649.
Mr. Mayen makes neither showing. Accordingly, the court concludes his
§ 2254 petition should be dismissed with prejudice as untimely.
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CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends granting respondent’s motion to dismiss [Docket
No. 11] and dismissing Mr. Mayen’s § 2254 petition with prejudice as untimely.
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
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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