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072222P.pdf   05/08/2008  Samuel Boston  v.  Douglas Weber
   U.S. Court of Appeals Case No:  07-2222
   U.S. District Court for the District of South Dakota   
   [PUBLISHED] [Gruender, Author, with Bye and Beam, Circuit Judges]
Prisoner Case - state habeas corpus. District court's dismissal of section 2254 habeas petition as untimely based on AEDPA statute of limitations is affirmed, as time between final judgment and date of filing of application for state collateral review counts against one-year limitations period. Tolling provision based on state post-conviction proceedings applies only when proceedings are pending, not before application is filed. District court did not abuse its discretion in concluding State did not waive its statute of limitations defense by failing to raise it in its responsive pleading or in objections to magistrate judge's recommendation, as State did not concede timeliness or intelligently choose to waive defense and defendant did not show prejudice.