The opinion of the court was delivered by: Karen K. Klein United States Magistrate Judge
Petitioner Raymond Voisine ("Voisine") filed a petition for habeas relief under 28 U.S.C. § 2254 (Doc. #6) and a motion to appoint counsel (Doc. #7). The court conducted an initial review of the petition and ordered service upon the respondent. (Doc. #8). The respondent submitted the state court records, and filed a response (Doc. #23) and a motion to dismiss the habeas petition (Doc. #15). Voisine did not respond to the respondent's motion to dismiss, and the time for doing so has expired.
Voisine pled guilty to one count of gross sexual imposition and the state district court entered its criminal judgment on October 22, 2004. Resp. Ex. 4A. Voisine was sentenced to five years of incarceration with four years suspended, and five years of supervised probation. Id. Voisine did not appeal the judgment. On March 30, 2005, the state district court entered an amended criminal judgment to accurately reflect the number of days of credit for time Voisine spent in custody prior to the court's criminal judgment. Resp. Ex. 4B.
In May 2005, the state petitioned to revoke Voisine's probation because he failed to successfully complete sex offender treatment while incarcerated, specifically because he would not accept responsibility for or admit to the offense. Voisine v. State, 2008 ND 91, ¶ 3, 748 N.W.2d 429, 431; Resp. Ex. 5A. After a revocation hearing, the state district court revoked Voisine's probation and resentenced him to ten years of imprisonment with five years suspended, and five years of supervised probation. Resp. Ex. 5B. Voisine did not appeal the judgment, but instead filed a petition for post-conviction relief, which was denied by the state district court. Resp Exs. 6, 7. Voisine appealed the denial of his petition to the North Dakota Supreme Court, which reversed the state district court, finding the district court erred in denying Voisine's petition for post-conviction relief because his conditions of probation did not become effective until Voisine was released from incarceration. See Voisine v. State, 2008 ND 91, 748 N.W.2d 429; Resp. Ex. 10.
After the North Dakota Supreme Court issued its opinion in May of 2008, Voisine was released from incarceration and the state petitioned to commit him as a sexually dangerous individual. Resp. Ex. 1. The state alleged Voisine sexually abused his grandson, fathered three children with two of his daughters, sexually abused his daughters as minors, conceived a child with a sixteen-year-old girl in Maine, and promoted obscenity to a minor by showing pornography to his grandson/son. In re Voisine, 2010 ND 17, ¶ 4, 777 N.W.2d 908, 910; Resp. Exs. 1, 17. The state district court found incest between a father and his daughters is "sexually predatory conduct" and because Voisine committed incest with his daughters, had sexual contact with his grandchildren, and is supported by his immediate family in his conduct, "it is a near certainty that he will once again engage in sexually predatory conduct without institutional treatment." Id. at ¶ 6, 777 N.W.2d at 910-911; Resp Exs. 14, 17. Voisine appealed the civil commitment order to the North Dakota Supreme Court, which found the state district court erred in finding incest between consenting adults is "sexually predatory conduct." Id. at ¶ 15, 777 N.W.2d at 913; Resp. Ex. 17. The North Dakota Supreme Court could not determine whether the remainder of the civil commitment order was adversely influenced by the error, so it reversed the state district court and remanded for further proceedings and findings of fact. Id.
On remand, the state district court found that Voisine's sexual contact with his grandson and with a sixteen-year-old girl is "sexually predatory conduct," that Voisine suffers from a sexual, personality, or other mental disorder, and because Voisine committed incest with his daughters, had sexual contact with his grandchildren, impregnated a minor, and is supported by his immediate family in his conduct, "it is a near certainty that Voisine will once again engage in sexually predatory conduct without institutional treatment." Resp. Ex. 19. Voisine appealed the civil commitment order to the North Dakota Supreme Court, which summarily affirmed the order. State v. Voisine, 2010 ND 241, No. 20100163, 2010 WL 5416849 (N.D. Dec. 21, 2010). The North Dakota Supreme Court issued its mandate on January 26, 2010. See http://www.ndcourts.gov/court/docket/20100163.htm.
In Voisine's habeas petition he states he was wrongly accused, arrested, and charged for a crime he did not commit, and alleges he was tried twice for the same crime. (Docs. #6, 6-1). It appears Voisine is challenging his civil commitment and his conviction for gross sexual imposition.
Habeas corpus relief is only available to a prisoner if he is in custody. 28 U.S.C. § 2254(a). A habeas petition filed after a prisoner's sentence has expired fails to satisfy the custody requirement. Cotton v. Marbary, 674 F.2d 701, 703-04 (8th Cir. 1982). The respondent states that Voisine is currently on supervised probation for his conviction for gross sexual imposition. (Doc. #23). Therefore, Voisine is considered in custody for purposes of habeas corpus. See Barks v. Armontrout, 872 F.2d 237, 238 (8th Cir. 1989).
II. Statute of Limitations
Voisine's petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which imposes a one-year statute of limitations for filing federal habeas petitions. AEDPA provides that the one-year statute of limitations starts to run on the date when the state court judgment becomes final by the conclusion of direct review or the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
Voisine did not appeal from the judgment of conviction entered by the state district court on October 22, 2004, or the amended judgment of conviction entered on March 30, 2005. Therefore, under AEDPA the statute of limitations for filing his federal habeas petition began to run on the date of the expiration of time for seeking review. Rule 4(b) of the North Dakota Rules of Appellate Procedure provides that a party must file an appeal with the clerk of district court within thirty days after entry of the ...