United States District Court, D. North Dakota
Charles S. Miller, Jr., Magistrate Judge.
Anthony James Robinson is an inmate at the North Dakota State
Penitentiary (“NDSP”) in Bismarck, North Dakota.
He has filed a “Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State
Custody.” The State of North Dakota
(“State”) has filed a “Limited Motion to
Dismiss Section 2254 Petition.” The parties have
consented to the exercise of jurisdiction by the undersigned.
For the reasons set forth below, the State's motion to
dismiss is granted, and Robinson's petition is dismissed
was charged in state district court with the offense of
murder. He executed a plea agreement and entered a guilty
plea to this offense on October 20, 2011. (Doc. No. 15-2). He
was sentenced on January 11, 2012, to term of imprisonment of
fifty years with twenty-three years suspended.
(Id.). The state district court entered an amended
criminal judgment on February 2, 2012. (Id.).
Robinson did not file a direct appeal. (Id.; Doc.
December 27 2013, Robinson filed an application for
postconviction relief in state district court. (Doc. Nos.
15-3 and 15-4). See Robinson v. State, 2016 ND 127,
881 N.W.2d 256. The state district court dismissed the
application on motion by the State on January 7, 2016. (Doc.
No. 15-3). Its decision was summarily affirmed by the North
Dakota Supreme Court in a per curiam dated June 30, 2016.
Robinson, 2016 ND 127. The mandate was issued on
July 29, 2016.
October 12, 2016, Robinson filed a § 22554 petition with
this court. On November 30, 2017, the Government filed
a motion to dismiss on the ground that the petition was time
barred. Robinson has yet to file a response.
STANDARD OF REVIEW
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the one-year statute of limitations at
28 U.S.C. § 2244(d)(1) applies to a state prisoner's
application for federal habeas corpus relief. Johnson v.
Hobbs, 678 F.3d 607, 610 (8th Cir. 2012). In this case,
pursuant to § 2244(d)(1)(A), the one-year period began
to run on “the date on which the [state court] judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review[.]”
See, e.g., Johnson, 678 F.3d at
610. “Review of a state criminal conviction by the
United States Supreme Court is considered direct review of
the conviction.” King v. Hobbs, 666 F.3d 1132,
1135 (8th Cir. 2012) (quoting Smith v. Bowersox, 159
F.3d 345, 347 (8th Cir. 1998)). When the United States
Supreme Court has jurisdiction to review the state court
judgment and the petitioner does not seek such review, the
state court judgment becomes final when the petitioner's
time for requesting a writ of certiorari expires.
Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012).
2244(d)(2) provides for the tolling of the one-year statutory
period for “[t]he 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[.]” See, e.g.,
Johnson, 678 F.3d at 610. The time between the
conclusion of direct review of the state court judgment and
the filing of an application for state post-conviction relief
counts against the one-year period. Painter v. Iowa,
247 F.3d 1255, 1256 (8th Cir. 2001). “A state
postconviction action ‘remains pending' for the
purpose of federal tolling ‘until the application has
achieved final resolution through the State's
postconviction procedures.'” Steen v.
Schuetzle, 326 Fed.Appx. 972, 973 (8th Cir. 2009)
(quoting Carey v. Saffold, 536 U.S. 214, 220
(2002)). A postconviction proceeding appealed to the North
Dakota Supreme Court remains pending until the Court issues
its mandate. Steen, 326 Fed.Appx. at 974 (citing
Finch v. Backes, 491 N.W.2d 705, 707 (N.D. 1992);
N.D.C.C. § 28-05-10).
pro se prisoner's habeas petition is deemed
filed on the date it is delivered to prison officials for
mailing to the clerk of court. Nichols v. Bowersox,
172 F.3d 1068, 1077 (8th Cir. 1999), abrogated on other
grounds by Riddle v. Kemna, 523 F.3d 850 (8th Cir.
2008). Fed.R.Civ.P. 6(a) generally governs the calculation of
AEDPA time limits. Wright v. Norris, 299 F.3d 926,
927 n.2 (8th Cir. 2002).
Application of § 2244(d)(1)(A)
noted above, Robinson was sentenced on January 11, 2012. An
amended judgment of conviction was filed by the state
district court on February 2, 2012. Under state rules of
appellate procedure, Robinson had thirty days in which to
file a direct appeal of his conviction with the North Dakota
Supreme Court. N.D. R. App. P. Rule 4(b)(1)(A) (“In a
criminal case, a defendant's notice of appeal must be
filed with the clerk of the supreme court within 30 days
after the entry of the judgment or order being
appealed.”). As Robinson did not file a direct appeal,
the judgment of conviction became final for purposes of AEDPA
and his one-year window in which to file a § 2254
petition commenced on March 5, 2012. See 28 U.S.C.
§ 2244(d)(1)(A) (stating in relevant part that the
one-year period began to run upon expiration of the time for
seeking direct review). Cf. In re Jose Carlos
Belmont, No. SA-15-MC-856-OG, 2015 WL 12748173, at * 2
(W.D. Tx. Oct. 8, 2015) (citing Mark v. Thaler, 646
F.3d 191 (5th Cir. 2011), for the proposition that, when a
“state criminal defendant chose not to file an appeal
from his conviction, his conviction becomes final for
purposes of the AEDPA's one-year limitations period
thirty days from the date of his sentencing.”). His
deadline for filing a § 2254 petition lapsed on March 5,
record reflects that Robinson filed an application for
postconviction relief on December 27, 2013, or almost ten
months after his one-year window in which to file a §
2254 petition had closed. As Robinson's deadline for
petitioning this court for habeas corpus relief lapsed well
before he initiated post-conviction ...