Opinion
No. 3:02cv0374 AS
September 24, 2002
MEMORANDUM AND ORDER
On May 22, 2002, pro se petitioner, Samuel Jackson, Jr., an inmate at the Indiana State Prison (ISP) in Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on August 13, 2002, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. For immediate attention, this Court takes note of the unpublished memorandum decision of the Court of Appeals of Indiana entered July 5, 1996 authored by Judge Riley, and concurred in by Judges Chezem and Barteau. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein.
The petitioner did not seek transfer to the Supreme Court of Indiana which might invoke O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Neither did it seek certiorari review from the Supreme Court of the United States.
However, on May 22, 1997, this petitioner returned to the state trial court and filed for post-conviction relief under state law. The state trial court in Indianapolis, Indiana conducted an evidentiary hearing on April 17, 2000 and denied post-conviction relief on May 22, 2000. The case was once again before the Court of Appeals of Indiana, and that Court on May 30, 2001, acted in an unpublished opinion authored by Judge Mattingly-May and concurred in by Judges Bailey and Friedlander. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "B", attached hereto and incorporated herein. The Supreme Court of Indiana denied transfer with reference to the May 30, 2001 Court of Appeals opinion on August 23, 2001 which may obviate any problem under O'Sullivan.
On May 22, 2002, as indicated, this petition was filed here seeking relief under § 2254. Certainly, this petitioner is entitled to any reasonable application of Houston v. Lack, 487 U.S. 266 (1988). The Attorney General of Indiana has raised the one-year statute of limitations under 28 U.S.C. § 2244(d)(1). See also Artuz v. Bennett, 531 U.S. 4 (2000). The Court of Appeals of Indiana affirmed the conviction of this petitioner on October 3, 1996, and under the circumstances of this case and under Griffith v. Kentucky, 479 U.S. 314 (1987), this petitioner had until October 3, 1997 to file his petition for relief under 28 U.S.C. § 2254 and there is nothing in this case to justify the applicability of equitable tolling. See Wilson v. Battles, No. 01-4336 (7th Cir. September 10, 2002). The petitioner's state post-conviction relief petition tolled the limitations period during the time it was pending. The petitioner filed his petition for state post-conviction relief on May 22, 1997, and the statute of limitations was tolled until August 23, 2001 when the Indiana Supreme Court denied this petitioner's petition to transfer.
This petitioner did not file this petition until May 22, 2002. Taking the total amount of time that has lapsed since the petitioner's direct review concluded on October 3, 1996 until the date the petitioner filed his federal habeas petition on May 22, 2002, and subtracting the time that the statute of limitations was tolled, from May 22, 1997 until August 23, 2001, the Court concludes that his petition was approximately 138 days late. Even giving him the benefit of the Houston rule, the petition is still time barred. This Court has no choice under 28 U.S.C. § 2254 but to DENY this petition.
IT IS SO ORDERED.