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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.