Opinion
1:24-CV-01004-KES
05-16-2024
BRADLEY D. QUIST, Plaintiff, v. TERESA BITTINGER, WARDEN OF THE SOUTH DAKOTA STATE PENITENTIARY, Respondent.
REPORT AND RECOMMENDATION ON HABEAS CORPUS PETITION AND MOTIONS
MARK A. MORENO, UNITED STATES MAGISTRATE JUDGE
Bradley D. Quist, an inmate at the South Dakota State Penitentiary in Sioux Falls, petitioned in federal court seeking habeas corpus relief under 28 U.S.C. § 2254. Teresa Bittinger, the warden of the State Penitentiary, moved to dismiss the petition as being time-barred. Because Quist's petition is untimely, he is not entitled to equitable tolling of the limitations period, and he has made no showing of actual innocence, the petition should be dismissed.
BACKGROUND
Quist was convicted of second degree murder in Brown County circuit court on April 20, 2017.The South Dakota Supreme Court affirmed his conviction, on March 28, 2018 and he did not petition for a writ of certiorari in the United States Supreme Court.Quist instead sought habeas corpus relief with the circuit court in Brown County on March 25, 2020.When relief was denied, Quist moved the state supreme court for a certificate of probable cause to appeal, but the court denied the motion on February 2, 2024. About a month later, on March 6, 2024, Quist filed a § 2254 petition, the petition now under review.
Docket No. 1 at 1.
Id. at 2.
Id.
Id.
See Docket No. 1.
This court promptly examined Quist's petition, determined that his federal habeas case may be time-barred, and ordered the parties to respond. Bittinger then moved to dismiss the petition asserting that it was untimely. Quist replied, maintaining that he acted with the diligence required for equitable tolling of the one-year time limitation.
See Rule 4 of the Rules Governing Section 2254 Cases (requiring judge to “promptly examine” the petition).
Docket No. 4.
Docket Nos. 6, 7.
Docket No. 10-1.
DISCUSSION
A. Respondents
In footnotes to her dismissal motion and supporting memoranda, Bittinger points out that Kellie Wasko, the Secretary of Corrections, and Marty Jackley, the South Dakota Attorney General, are not proper respondents in the case. Because she is Quist's current custodian and “‘the person' with the ability to produce [his] body before the habeas court,” Bittinger says that she should have been named as the lone respondent.The court agrees.
Docket Nos. 6 at 1, n.1 & 7 at 1, n.1.
Id. (quoting Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)).
In the context of “present physical confinement . . . the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” The proper remedy for designating the wrong respondent is amendment of the petition, not dismissal.Consistent with these precepts, Wasko and Jackley should be dropped as respondents and Bittinger added in place of them. The § 2254 form (DSD 12-09) Quist used, and was supplied with, includes the Attorney General as an “Additional Respondent” and should be modified.
Padilla, 542 U.S. at 435; see also id. at 435-39 (discussing “immediate custodian rule”); Rule 2(a) of Rules Governing Section 2254 Cases in United States District Courts (requiring “the state officer who has custody” be named as respondent (singular) in petition).
See Dubrin v. California, 720 F.3d 1095, 1100 (9th Cir. 2013) (rejecting state's argument that pro se litigant's “petition should be dismissed because he erroneously designated the ‘People of California' as the respondent, rather than the state official who has custody of him”; “On remand, the district court shall either deem Dubrin's [] petition to have been amended to name the proper respondent, or grant him leave to amend his petition to correct this technical deficiency.”).
See Fed.R.Civ.P. 21; Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005); Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996); see also Henderson v. DeTella, 97 F.3d 942, 942 n.* (7th Cir. 1996) (substituting warden of facility in which petitioner currently incarcerated for respondent petitioner named).
See Docket No. 1.
See Davis v. Bittinger, No. 23-CV-04125-LLP, Docket No. 7 at *13-16 (D.S.D. Dec. 15, 2023), report and recommendation adopted, Docket No. 8 (D.S.D. Feb. 20, 2024).
B. Timeliness
Bittinger argues that Quist's § 2254 petition is time-barred because he did not file it within the one year plus 90-day limitation period set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA). Quist does not claim that he filed his petition within this prescribed period.
Docket No. 7.
See generally Docket Nos. 8-10-1.
The AEDPA contains a one-year statute of limitations.Relevant here, the one-year period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review.” But “[t]he time during which a properly filed application for [s]tate post-conviction or other collateral review [of] the pertinent judgment or claim [] pending shall not be counted toward any period of limitation.”
A judgment is final, and starts the limitations period, upon (1) “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, if certiorari was not sought, (2) “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.” The time for petitioning for a writ of certiorari with he Supreme Court is 90 days.
Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998).
Sup. Ct. R. 13.
The limitations period for filing a § 2254 petition though is tolled, or paused, while state collateral review proceedings are “pending.” Such proceedings “are ‘pending' for the period between the trial court's denial of [collateral relief] and the timely filing of an appeal from it.”
Faulks v. Weber, 459 F.3d 871, 873 (8th Cir. 2006).
Maghee v. Ault, 410 F.3d 473, 475 (8th Cir. 2005); see also Johnson v. Kemna, 451 F.3d 938, 939 (8th Cir. 2006) (application for state post-conviction relief pending until mandate issued).
State proceedings are not, however, pending for the 90-day period “following the final denial of state collateral relief, the period during which an unsuccessful [] petitioner may seek a writ of certiorari from the United States Supreme Court.” The AEDPA's one-year statute of limitations thus begins to run after the state conviction is final, is suspended while state collateral proceedings are pending, and then commences again when those proceedings become final.
Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001).
Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003).
Quist appealed his conviction to the South Dakota Supreme Court on May 22, 2017. That court affirmed his conviction on March 28, 2018. His judgment became final on June 26, 2018 (90 days after the court decided his direct appeal). He did not file an application for habeas relief in state court until March 25, 2020,638 days later. All these days count toward the one-year statute of limitation period. The 33 days, between the state supreme court's denial of his certificate of probable cause motion on February 2, 2024 and the filing of his federal habeas petition on March 6, 2024 is also countable.
Docket No. 1 at 2.
Id.
See Boston v. Weber, 525 F.3d 622, 624 (8th Cir. 2008).
Docket Nos. 1 at 2 & 7-4, Attachment 2.
Docket No. 7-4, Attachment 7.
Docket No. 1.
All told, there are 671 days of calculable days under the limitation statute-well over one year.
That Quist timely filed his state habeas application, makes no difference. The state statute of limitation does not affect his federal filing deadline. The AEDPA limitation period had expired and he thus had no time left to toll.
See S.D. Codified Laws § 21-27-3.3 (providing for two-year statute of limitation for state application for writ of habeas corpus).
See Curtiss, 338 F.3d at 853-55 (affirming district court's holding that federal statute of limitations not affected by state's longer limitations period).
See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (when petitioner filed his state post-conviction application no federal limitation period remaining to toll, so federal petition properly dismissed as time-barred).
C. Equitable Tolling
The AEDPA's one-year statute of limitation though is not a jurisdictional bar.Like other limitation statutes, the statute's time limit may be equitably tolled. But “[e]quitable tolling affords the otherwise time-barred [federal] petitioner an exceedingly narrow window of relief.”To be entitled to equitable tolling the petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 645 (2010) (“[T]he AEDPA ‘statute of limitations defense . . . is not jurisdictional.'” . . . “It does not set forth ‘an inflexible rule requiring dismissal whenever' its ‘clock has run.'”).
Id. at 645-47.
Gordon v. Arkansas, 823 F.3d 1188, 1195 (8th Cir. 2016).
Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
To demonstrate his diligence, Quist includes several letters he received from attorneys he wrote and from his retained state habeas counsel.Whether he acted with the requisite diligence is not at all clear. Although Quist says (1) the state courts “rejected” his April 16, 2018 habeas application because he did not have counsel (something there is no record of) and (2) he sent letters to several attorneys about representing him, there were other reasonable measures he could have pursued. For example, Quist could have sought leave from a judge to proceed with the state habeas case pro se. Nothing in state law required that he have counsel to file or prosecute a habeas action in state court.Quist also could have directed his state counsel to file a protective federal habeas petition and, if need be, to stay the federal action until his state proceedings had concluded. And Quist could have filed a federal petition himself and requested that his federal case be held in abeyance pending resolution of the state one.
Docket No. 10-1.
See Docket No. 10-1 at 5, 12-18 (unsworn handwritten application with no time or file stamp and no supporting correspondence from court that application rejected).
See http://ecourts.sd.gov (last visited May 16, 2024).
See generally S.D. Codified Laws §§ 21-27, et seq.
Yet even if Quist were diligent enough in pursuing his rights (which is debatable), he has still failed to establish that there was an extraordinary circumstance, out of his control, that kept him from filing his § 2254 petition on time. He has not alleged or shown, that habeas counsel engaged in misconduct, egregious behavior, or violated any canons of professional responsibility. His own exhibit reflects that three days before the federal limitation period was due to expire, counsel had not received the materials requested from prior criminal counsel. So habeas counsel had little chance of filing the state case on time and of tolling the period.
See Holland, 560 U.S. at 652-53; see also id. at 659 (Alito, concurring).
Docket No. 10-1 at 19.
At any rate, any supposed neglect or miscalculation on the part of habeas counsel-that led to the running of the AEDPA's one-year period-was, at best, “garden variety” negligence. Such negligence is not an extraordinary circumstance sufficient to justify equitable tolling, “particularly in the post-conviction context where prisoners [like Quist] have no constitutional right to counsel.” Without knowing anything about Quist's communication with counsel, the court cannot determine what caused the delay in filing the state habeas case. Quist has the burden of alleging facts that satisfy the extraordinary circumstances prong of the equitable tolling test, and he has not carried his burden-even after given an opportunity to do so. His “pro se status, lack of legal knowledge or resources, confusion about or miscalculation of the limitation[] period, or the failure to recognize the legal ramifications of prior post-conviction proceedings are inadequate to warrant equitable tolling.” And so is his unsuccessful search for postconviction counsel, another ordinary obstacle most habeas petitioners face.
See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007).
Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004).
See Jihad, 267 F.3d at 806-07.
D. Actual Innocence
The only way left for Quist to excuse the late filing of his petition is by making a convincing showing that he committed no crime. Actual innocence can provide a gateway for him-despite the expiration of the limitation period-if “new evidence [demonstrates] ‘it is more likely than not that no reasonable juror would have convicted [him].'”“The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'”This “standard is demanding” and successful claims are “rare.”
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
Id. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also id. at 386, 399.
Id. at 401 (quoting Schlup, 513 U.S. at 316).
Id.
Id. at 386.
Quist offers no new evidence of his innocence in his petition or other filings.Without a plausible claim of actual innocence, he cannot invoke the miscarriage of justice exception to overcome the statutory time barrier the AEDPA erects.
See Docket Nos. 1, 10-1.
See McQuiggin, 569 U.S. at 399-401; see also Dowty v. Jarvis, No. 3:16-CV-03003-RAL, 2016 WL 3083373, at *5 (D.S.D. May 31, 2016) (no credible showing that a constitutional violation probably resulted in conviction of one actually innocent).
E. Motions
Quist's motion relating to the $5.00 filing fee is moot. He paid the fee and the clerk received it.
Docket No. 9.
See Attachment.
His motion for plain-error review application contains the same claim he raised in his petition. Because both claims, along with the petition itself, are untimely, there is no reason to address them.
Docket No. 8.
See and compare Docket No. 1 at 4-5 with Docket No. 8 at 1-4.
CONCLUSION
Wasko and Jackley should be dropped as party respondents and Bittinger added as the sole respondent. Bittinger is the person who has physical custody and legal control of Quist at this time and should be the named respondent.
The form petition (DSD 12-09) provided to Quist erroneously includes the Attorney General as an additional respondent and should be revised. The Attorney General should not be a named respondent.
Quist's petition is time-barred and he is not entitled to equitable tolling. His due diligence is questionable and, at any rate, no extraordinary circumstance prevented him from petitioning within the limitation period. And Quist does not claim, or proffer new evidence that shows, he is innocent.
The separate motions Quist makes are either moot or premised on a claim that matches one of those raised in his already barred petition.
RECOMMENDATION
For all of these reasons, and based on the record as it now exists, it is
RECOMMENDED that Wasko and Jackley be dropped as respondents and Bittinger added in their stead. It is further
RECOMMENDED that form petition, used by § 2254 petitioners in the District of South Dakota, be reworked and the Attorney General deleted as an additional respondent. It is further
RECOMMENDED that Bittinger's motion to dismissbe granted and that Quist's petition for a writ of habeas corpus under § 2254 be dismissed with prejudice as time-barred. It is further
Docket No. 6.
Docket No. 1.
RECOMMENDED that Quist's motion for service and to show causebe denied as moot. It is further
Docket No. 9.
RECOMMENDED that Quist's motion for plain-error review application be denied as duplicative and untimely.
Docket No. 8.
NOTICE
The parties have 14 calendar days after service of this report and recommendation to object to the same. Unless an extension of time for cause is later obtained, failure to 7file timely objections will result in the waiver of the right to appeal questions of fact.Objections must “identify[] those issues on which further review is desired[.]”
See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665, 667 & n.3 (8th Cir. 1986) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).
See Thompson, 897 F.2d at 357; Nash, 781 F.2d at 667.
Arn, 474 U.S. at 155.
ATTACHMENT
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U.S. District Court
District of South Dakota
Notice of Electronic Filing
The following transaction was entered on 3/21/2024 at 5:09 PM CST and filed on 3/21/2024
Case Name: Quist v. Wasko et al
Case Number: 1:24-cv-01004-KES
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Docket Text:
Filing Fee Received from Bradley D. Quist. Fee Amount: $5.00, Receipt No.: #500000677. (KLE)
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Bradley D. Quist
15648
SOUTH DAKOTA STATE PENITENTIARY
PO Box 5911
Sioux Falls, S.D. 57117-5911