Opinion
No. 3:02cv0456 AS
September 24, 2002
MEMORANDUM AND ORDER
On June 27, 2002, pro se petitioner, Herman Morrison, an inmate at the Correctional Industrial Complex in Pendleton, 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 August 27, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on September 18, 2002, which this Court has carefully examined. Said Traverse and legal memorandum are in good legal form, which this Court appreciates.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. This case was earlier filed in the Superior Court of Lake County, Indiana and removed here under the exercise of federal question jurisdiction. For ease of reference, this Court will cite Morrison v. State, 588 N.E.2d 527 (Ind.App. 1992) and will also cite the unpublished memorandum decision of the Court of Appeals of Indiana entered April 25, 2001, authored by Judge Kirsch and concurred in by Chief Judge Sharpnack and Judge Mattingly. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. Certainly, the facts found by the Court of Appeals of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
With regard to the published decision of the Court of Appeals of Indiana in 588 N.E.2d 527, no effort was made to seek transfer to the Supreme Court of Indiana, which may implicate O'Sullivan v. Boerckel, 526 U.S. 838 (1999). However, with reference to the unpublished memorandum decision of the Court of Appeals of Indiana on April 25, 2001, there was indeed a petition for transfer which was denied by the Supreme Court of Indiana on July 18, 2001.
This petitioner gets some slight benefit from Houston v. Lack, 487 U.S. 266 (1988). He prepared and signed the petition that initiated this action on June 23, 2002, and the record shows that it was filed here on June 27, 2002. That does not help him very much in the face of the argument advanced by the Attorney General of Indiana that this petition was not timely filed under the one-year statute of limitations found in 28 U.S.C. § 2244(d)(1). This Court also notes that there is no basis in this record for equitable tolling. See Wilson v. Battles, No. 01-4336 (7th Cir. September 10, 2002). For the Supreme Court's reading of § 2254(d)(2), see Artuz v. Bennett, 531 U.S. 4 (2000).
This petitioner's direct appeal was decided on March 16, 1992, and no transfer was sought. Therefore, that appeal was final on June 8, 1992. Griffith v. Kentucky, 479 U.S. 314 (1987) is authority for the time when a conviction is final and not subject to further judicial review. The direct appeal was decided before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), which was really on April 24, 1996, but a year was added to it judicially in such cases as Gendron v. United States, 154 F.3d 672 (7th Cir. 1998). The June 23, 2002, date is well after the one-year grace period. The difference between April 23 and April 24, 1997 has been the subject of an extended opinion by the Court of Appeals. See Newell v. Hanks, 283 F.3d 827, 833 (2002).
This case was not timely filed, and this court has no option but to DISMISS it. Such is now ORDERED.
IT IS SO ORDERED.