Opinion
No. 3:01cv0866 AS
April 1, 2002
MEMORANDUM AND ORDER
On December 6, 2001, pro se petitioner, Rodney Gene Day, an inmate at the Westville Correctional Facility (WCF), filed a petition seeking relief under 28 U.S.C. § 2254. The Motion to Dismiss filed on behalf of the respondent by the Attorney General of Indiana on February 7, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). On March 29, 2002, the petitioner filed a Traverse which this Court has examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. A useful beginning point is a decision by the Court of Appeals of Indiana entered August 15, 2001 in the form of an unpublished memorandum decision. It was authored by Judge Bailey, concurred in by Judges Baker and Mathias of the Court of Appeals of Indiana. The same is attached hereto and incorporated herein as Appendix "A". Certainly, the findings of fact made by the second highest court in the State of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
There is an earlier opinion by the Court of Appeals of Indiana entered November 22, 1994. As reflected in Day v. State, 643 N.E.2d 1 (Ind.App. 1994), and as to the 1994 Court of Appeals opinion, there was a denial of transfer by the Supreme Court of Indiana on February 28, 1995. There is an earlier proceeding in September, 1999 in which the Court of Appeals of Indiana dismissed this petitioner's appeal for failure to timely file a record, and that dismissal was subject to a motion to transfer by the Supreme Court of Indiana, which was denied on November 23, 1999. With reference to the memorandum decision in Appendix "A", the Supreme Court of Indiana denied transfer on November 15, 2001. As indicated, this case was filed on or about December 6, 2001.
The Attorney General of Indiana once again raises the specter of the statute of limitations under 28 U.S.C. § 2244(d)(1), and specifically refers to the 28 U.S.C. § 2244(d)(1). Once again, this Court must determine whether the statute of limitations is tolled for that period of time during "which a properly filed application for state post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." See 28 U.S.C. § 2244(d)(2). These state convictions became final prior to the enactment of the AEDPA, and we now know beyond any doubt in an opinion from the Court of Appeals very recently that the key day is April 24, 1997, rather than April 23, 1997. The difference between those two dates does not appear to be a critical issue here as it did in Newell v. Hanks, No. 00-1558 (7th Cir. March 12, 2002).
This petition for relief under 28 U.S.C. § 2254 was prepared on or about November 27, 2001, and under Houston v. Lack, 487 U.S. 266 (1988), gets the benefit of that date. It was filed with the Clerk on December 6, 2001. The Attorney General of Indiana argues that both dates are beyond the one-year anniversary of the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996. The convictions here appear to be final on July 30, 1995. See Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997). Under the now clear teaching of Newell, the one-year period begins on April 24, 1996, and this petitioner had until April 24, 1997 to file his petition for relief under 28 U.S.C. § 2254. Such was not done. In fact, it was not done for several years. Giving him the benefit of the Houston rule, namely November 27, 2001, the petition remains time-barred.
Now, the question that needs to be addressed here carefully is whether the filing of the state post-conviction petition in the state trial court on February 18, 2000 someway salvaged or tolled the statute. This petitioner filed a motion in the state trial court to correct an erroneous sentence on April 13, 1998. Even if this is considered to be a "properly filed application," it was not filed until August 13, 1998. At that point, there had already been 476 days of post-Act delay after April 24, 1996, and taking into account April 24, 1997. This is more than the one-year grace period allotted. Thus, the petition remains untimely. The petitioner does not contend that he was unable to raise the claim set forth in his federal petition because of any impediment to an appeal created by the State, and none is apparent from the record. Claims appear to be time-barred under 28 U.S.C. § 2244(d)(1)(B). The statute of limitations clearly applies here, and requires the dismissal of this petition, notwithstanding the protestations of this petitioner in his filing of March 29, 2002. These decisions, which are now numerous, dealing with the statute of limitations must be followed by this Court, and are binding as above indicated.
This Court has no choice but to GRANT the motion to dismiss. IT IS SO ORDERED.