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
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING PETITION
Petitioner, Elizeo Kalimba, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254 alleging that his trial counsel was ineffective for
failing to advise him that a conviction could affect his immigration status in the
United States. Docket 1. Now pending is respondents’ motion to dismiss
Kalimba’s petition without holding an evidentiary hearing. Docket 9. The
matter was referred to United States Magistrate Judge Veronica L. Duffy under
28 U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014, standing order.
Magistrate Judge Duffy recommends that respondents’ motion to dismiss be
granted and Kalimba’s habeas petition be dismissed with prejudice. Docket 20
at 10. Kalimba timely filed objections to the report and recommendation.
Dockets 21, 22. For the following reasons, the court adopts Magistrate Judge
Duffy’s report and recommendation in full and dismisses Kalimba’s petition.
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STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations as to dispositive matters that are timely made and specific.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In conducting its de novo review,
this court may then “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994). Magistrate Judge
Duffy provided a full, complete and well-analyzed report and recommendation
addressing all the issues raised by Kalimba. The court adopts the
recommendations in full and addresses briefly the issues raised by Kalimba in
his objections.
FACTUAL BACKGROUND
A full factual and procedural background was provided by the Magistrate
Judge in her report and recommendation. Docket 20 at 1-3. Kalimba does not
object to the facts, but rather objects to the conclusion that equitable tolling
does not apply. Docket 21 at 1-6; Docket 22 at 1-5. This court has reviewed the
facts and finds that they are all supported by the record. Thus, the full factual
and procedural background as set forth in the report and recommendation is
adopted.
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DISCUSSION
In his objections, Kalimba alleges that the statute of limitations for filing
his § 2254 petition should have been equitably tolled because he filed his
petition for relief promptly after he became aware that his conviction could
result in his deportation. Docket 21 at 1-6; Docket 22 at 1-5. But the
undisputed facts indicated that Kalimba was taken into the custody of the
United States Immigration and Customs Enforcement Agency on January 13,
2020, after he was paroled from state custody. Docket 17 at 2. He then waited
10 months until October of 2020 before he filed a request in state court for
relief. Docket 10-6. And after the state court denied his request in December
2020 (Docket 10-7), he waited over a year before he filed his § 2254 petition in
federal court on April 11, 2022. See Docket 1. As Magistrate Judge Duffy
concluded, Kalimba has not established “reasonable diligence” in pursuing his
federal habeas rights and as a result, he is not entitled to equitable tolling of
his petition for relief. See Holland v. Florida, 560 U.S. 631, 653 (2010) (citation
omitted). Because Kalimba has not established that the statute of limitations
should be equitably tolled, his petition is dismissed with prejudice as untimely.
CERTIFICATE OF APPEALABILITY
When a district court denies a petitioner’s § 2254 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial
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showing” is one that proves “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a
showing that issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). Kalimba has not made a substantial
showing that his claim is debatable among reasonable jurists, that another
court could resolve the issue raised in his claim differently, or that a question
raised by his claim deserves additional proceedings. Thus, a certificate of
appealability is not issued.
CONCLUSION
It is ORDERED:
1. Kalimba’s objections to the report and recommendation (Dockets 21,
22) are overruled.
2. The report and recommendation (Docket 20) is adopted in full.
3. Respondents’ motion to dismiss (Docket 9) is granted. Kalimba’s habeas
petition (Docket 1) is dismissed with prejudice.
4. Kalimba’s motion for expedited habeas proceedings (Docket 24) is
denied as moot.
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5. A certificate of appealability is denied.
Dated November 23, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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