Kalimba v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ELIZEO KALIMBA,
Petitioner,
vs.
STATE OF SOUTH DAKOTA,
ATTORNEY GENERAL OF SOUTH
DAKOTA, and LINCOLN COUNTY,
Respondents.
4:22-CV-04050-KES
REPORT AND RECOMMENDATION
INTRODUCTION
Petitioner, Elizeo Kalimba, formerly an inmate in the South Dakota
penitentiary system, has filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. 	Now pending is respondents’ motion to dismiss
Mr. Kalimba’s petition without holding an evidentiary hearing. 	Docket No. 9.
Mr. Kalimba resists the motion. 	Docket Nos. 16 & 17. 	The pending matter was
referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the
October 16, 2014, standing order of the Honorable Karen E. Schreier, United
States District Court Judge.
FACTS
Mr. Kalimba seeks to challenge his 2014 conviction based on a guilty
plea. 	The state court entered its judgment against Mr. Kalimba on May 12,
2014. 	Docket No. 10-5. 	Mr. Kalimba did not file a direct appeal following his
conviction and sentencing. 	His conviction therefore became final on June 11,
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2014. 	SDCL § 15-26A-6 (allowing 30 days to file a notice of appeal on a
criminal conviction).
On January 13, 2020, Mr. Kalimba was paroled from state custody and
transferred directly into the custody of United States Immigration and Customs
Enforcement Agency (ICE). 	Docket No. 17 at p. 2. 	Mr. Kalimba filed a motion
to withdraw his plea of guilty with the state court approximately 10 months
later in October 2020, which was denied by the state circuit court on December
16, 2020.1 	Docket No. 10-7. 	He did not file a motion for certificate of probable
cause with the South Dakota Supreme Court nor did he appeal the trial court’s
decision.
He also filed an action in the United States District Court for the District
of Minnesota challenging his ICE detention. 	Elizeo K. v. Immigration Custody
Enforcement, 0:20-cv-02657-JRT-ECW, Docket No. 1 (D. Minn.). 	Pursuant to a
stipulation of the parties, the court ordered Mr. Kalimba released from ICE
custody on January 12, 2021. 	Id. at Docket No. 9 (D. Minn. Jan. 12, 2021).
1 The state court clerk file stamped Mr. Kalimba’s state habeas petition as
received on December 16, 2020. 	The document bears the indeterminate date of
“October 2020.” 	See Docket No. 10-6 at pp. 1 & 3. 	Although the usual rule is
that a pleading is filed when it is received by the clerk of court for inclusion in
the official record (Artuz v. Bennett, 531 U.S. 4, 8 (2000)), this court
nevertheless for purposes of this report and recommendation gives Mr. Kalimba
the benefit of the earlier date. 	Mr. Kalimba’s motion was styled as a motion to
withdraw his plea of guilty. 	See Docket No. 10-6. 	The court assumes without
so holding, for purposes of this opinion only, that Mr. Kalimba’s pleading was
an “application for State post-conviction or other collateral review” within the
meaning of § 2244(d)(2).
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Mr. Kalimba filed this federal habeas corpus petition on April 11, 2022.
Mr. Kalimba asserts his state court counsel was ineffective for failing to advise
him that a conviction could affect his immigration status in this country. 	Id.
In response to a question on his § 2254 habeas form, Mr. Kalimba explains he
did not file his state request to withdraw his plea until 2020 because he did not
know until then that the United States would seek to deport him following the
service of his sentence. 	Id.
DISCUSSION
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 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 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;
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(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).
The phrase “post-conviction or other collateral review” in § 2254’s tolling
provision encompasses the “diverse terminology that different States employ to
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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. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003).
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Mr. Kalimba’s federal petition is clearly time-barred. 	His conviction
became final June 11, 2014. 	It was at this point that his AEDPA limitations
period began to run. 	The AEDPA limitations period expired on June 11, 2015.
Therefore, unless equitable tolling applies, Mr. Kalimba’s petition may not be
heard.
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) (citing 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).
Here, Mr. Kalimba explains that he waited until 2020 to file his state
motion to withdraw his plea of guilty because he allegedly did not know of the
grounds for relief he raised therein. 	However, he was taken into ICE custody
on January 13, 2020, and he waited 10 months after that event before filing
his state court plea for relief. 	Furthermore, after the state court denied
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Mr. Kalimba relief in December 2020, he waited well over a year before filing
his § 2254 petition with this court in April 2022.
Because the statute of limitations for filing a § 2254 petition is only one
year, even if the court accepts as a valid ground for equitable tolling the fact
that Mr. Kalimba did not know his conviction could result in his deportation,
that explains only the delay up to January 13, 2020, at which time ICE took
custody of Mr. Kalimba. 	Clearly, at this point, he knew that ICE was asserting
a right to deport him.
Despite this knowledge, Mr. Kalimba waited 10 months to seek post-
conviction relief in South Dakota state courts. 	In addition, Mr. Kalimba waited
over a year after the South Dakota court denied him relief before he sought
relief in this court. 	The delays between (i) Mr. Kalimba entering ICE custody
and the filing of his state pleading and (ii) the December 2020 denial of his
state pleading and the April 2022 filing of this federal petition are not excused
by the fact that Mr. Kalimba was not aware his conviction could result in his
deportation. 	He assuredly knew that fact at least as of January 13, 2020.
The Holland Court held that a petitioner must establish “reasonable
diligence” in pursuing his federal habeas rights, not “maximum feasible
diligence.” 	Holland, 560 U.S. at 653. 	The Eighth Circuit has summarized what
does and does not constitute due diligence on the part of the petitioner:
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
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petition the very day that he learns it is late. . . . 	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.
See Williams v. Kelley, 830 F.3d 770, 773 (8th Cir. 2016) (citations omitted).
In one case, where the petitioner was prevented from filing for three
months due to his medical status, the court held no extraordinary
circumstances were present because petitioner failed to show why he could not
have filed in the nine months remaining of the limitations period. 	Gordon v.
Arkansas, 823 F.3d 1188, 1195-96 (8th Cir. 2016). 	See also Nelson v. Norris,
618 F.3d 886, 892-93 (8th Cir. 2010) (petitioner failed to demonstrate due
diligence when he failed to take any action for nine months).
Where a petitioner waited over five years before taking action, thinking
that an appellate court would appoint a lawyer for him, the petitioner failed to
demonstrate due diligence. 	Burks v. Kelley, 881 F.3d 663, 666-67 (8th Cir.
2018). 	Likewise, where a petitioner mistakenly believed his attorney had filed a
notice of appeal in his case, the petitioner’s lack of any activity for a year was
insufficiently diligent. 	Anjulo-Lopez v. United States, 541 F.3d 814, 818 (8th
Cir. 2008).
In another case, a petitioner wrote a letter to the court six weeks before
the AEDPA limitations period was going to expire, asking to speak to his public
defender about some matters unrelated to filing a federal habeas petition.
English v. United States, 840 F.3d 957, 959 (8th Cir. 2016). 	No habeas
petition was filed. 	Id. 	The petitioner waited another six months before filing
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the petition on his own. 	Id. 	The court held the petitioner did not act with due
diligence. 	Id.
Respondent cites to a Seventh Circuit opinion, Clarke v. United States,
703 F.3d 1098 (7th Cir. 2013), in support of its argument that Mr. Kalimba
was not diligent in pursuing his rights. 	Clarke involved a federal habeas action
pursuant to 28 U.S.C. § 2255, which is also subject to a one-year limitations
period. 	Id. at 1099. 	Clarke was sentenced and her conviction became final in
May 2010. 	Id. at 1100. 	Removal proceedings were begun against her in
August 2011 as a result of her conviction. 	Id. at 1099. 	Clarke filed her § 2255
motion in October 2011, alleging neither the court nor her lawyer had advised
her of the possibility of deportation upon her conviction. 	Id. at 1099.
The Seventh Circuit held Clarke’s petition was untimely and that she did
not qualify for equitable tolling because she had not exercised due diligence.
Id. at 1099-1102. The court stated that, although Clarke may not have known
specifically of the danger of deportation, she certainly knew she was not a
citizen and she had had over a year to discover the consequences of a felony
conviction for a non-citizen. 	Id. at 1100. 	The court noted Clarke had lived in
the United States for many years and there was no suggestion she had any
difficulties with the English language. 	Id. at 1100-01.
The facts in Mr. Kalimba’s case are even more compelling against
granting equitable tolling than were the facts in Clarke. 	In Clarke, the
petitioner acted within only two months of the institution of deportation
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proceedings against her. 	By contrast, Mr. Kalimba was on notice as of January
13, 2020, that the immigration authorities sought to deport him, yet he waited
10 months to seek collateral relief in state court. 	When the state court denied
that relief, he waited nearly 15 months to file the instant petition with this
court. 	His pleadings, which are well-reasoned and articulate, demonstrate no
difficulties with the English language.
Under the above law, Mr. Kalimba’s actions in pursuing habeas relief do
not constitute reasonable diligence. 	Accordingly, the court recommends that
Mr. Kalimba’s § 2254 petition be dismissed with prejudice as untimely.
Respondents also argue that Mr. Kalimba’s petition is procedurally
defaulted. 	Because the statute of limitations issue is dispositive, the court
declines to address this additional ground for dismissal.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends that respondent’s motion to dismiss [Docket No. 9] be
granted and that Elizeo Kalimba’s § 2254 petition be dismissed with prejudice
and without holding an evidentiary hearing.
NOTICE OF RIGHT TO APPEAL
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. 	See FED. R. C IV . P.
72(b); 28 U.S.C. § 636(b)(1)(B). 	Failure to file timely objections will result in the
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waiver of the right to appeal questions of fact. 	Id. 	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 June 16, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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