Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 42 U.S.C. § 2254. Petitioner seeks to challenge his conviction in July, 1998, which the Petition clearly indicates became final with the Maine Law Court's denial of his request for leave to appeal his sentence on September 14, 1998. No state post-conviction review was sought.
A one-year limitation period applies to applications for writs of habeas corpus. 42 U.S.C. § 2244(d). As relevant to this Petition, that time period began running ninety days after September 14, 1998, which is the period during which Petitioner could have sought a Writ of Certiorari from the United States Supreme Court. Sup. Ct. R. 13(1). Accordingly, the one-year limitation period in this case would have begun on December 14, 1998.
The time period is tolled under the statute during the time a "properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2). Petitioner did not file a post-conviction petition, however. Accordingly, the one-year limitation period expired without interruption on December 13, 1999. This Petition, filed on April 17, 2000, is clearly time-barred.
This Court has noted that the limitation period in section 2244(d) operates as an affirmative defense, rather than a jurisdictional bar. Libby v. Magnusson, 177 F.3d 43, 49 (D. Me. 1999). At least one federal circuit court has concluded, however, that Rule 4 of the Rules Governing Section 2254 Cases, which permits the Court to dismiss petitions that plainly show no relief is available, is inconsistent with the requirement in the Federal Rules of Civil Procedure that an affirmative defense must be plead. Kiser v. Johnson, 163 F.3d 326, 329 (5 *fnth Cir. 1999); Fed. R. Civ. P. 8(c). In such a case, the Rules Governing Section 2254 Cases apply, and the Court may dismiss on the basis of the statute of limitations during its initial review of the Petition. Id.; Rule 11, 28 U.S.C. foll. § 2254. I agree with the Fifth Circuit that to apply Federal Rule 8(c) to habeas petitions that are clearly untimely would substantially impair the Court's ability to weed out meritless habeas petitions. Kiser, 163 F.3d at 328. Accordingly, I hereby recommend the Petition for Writ of Habeas Corpus be summarily DISMISSED, and the Writ DENIED.
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) (1988) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.
Margaret J. Kravchuk United States Magistrate Judge
CIVIL DOCKET FOR CASE #: 00-CV-72
Assigned to: JUDGE D. BROCK HORNBY
Referred to: MAG. JUDGE MARGARET J. KRAVCHUK
Nature of Suit: 530
Lead Docket: None
Jurisdiction: Federal Question
Dkt# in other court: None
Cause: 28:2254 Petition for Writ of Habeas Corpus (State)