Opinion
No. 3:01cv0579.
January 23, 2002
MEMORANDUM AND ORDER
On August 13, 2001, pro se Petitioner, Stephen John Pilarski, an inmate at the Indiana State Prison in Michigan City, Indiana (ISP), filed a petition seeking relief under 28 U.S.C. § 2254. On October 15, 2001, the Respondent filed a Response to Order to Show Cause, with a Memorandum in Support, asking this Court to dismiss the Petition as untimely. On November 11, 2001, the Petitioner filed a Motion to Extend Time 60 days to file his Traverse. In a Memorandum and Order dated November 21, 2001, the Court granted Petitioner's request for an additional 60 days to file his Traverse. In the same Order, however, the Court carefully discussed the timeliness issue and explained to the Petitioner that he needed to address the fact that it appeared he had missed the one-year limitations period allowed by Congress for filing a federal habeas petition.
In 28 U.S.C. § 2244(d)(1), Congress included four events that can trigger the running of the statute of limitations. The first one is the date the judgment became final by the conclusion of direct review, or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). In this case, the Petitioner's appeals for direct review were concluded on June 8, 1994, when the Indiana Supreme Court affirmed his conviction in a written opinion. See, Pilarski v. State, 635 N.E.2d 166 (Ind. 1994). After adding 90 days during which the Petitioner could have appealed this decision to the United States Supreme Court, the Court arrives at the date of September 8, 1994 as the trigger date for the running of the one-year period. However, that date is before the effective date of the AEDPA, which was April 24, 1996. Therefore, the one-year period did not start to run for this Petitioner until April 24, 1996, and he had one year after the effective date in which to file a habeas petition under 28 U.S.C. § 2254, or until April 23, 1997. See, Gendron v. United States, 154 F.3d 672 (7th Cir. 1998).
Pilarski did not file a state or a federal petition either before or during the one-year period. Therefore, his opportunity to file a federal habeas petition within the one-year period after the conclusion of direct review, as required by 28 U.S.C. § 2244(d)(1)(A), was lost after April 23, 1997. Pilarski did not file a petition for State post-conviction relief until November 4, 1997.
However, there are three other events listed in 28 U.S.C. § 2244(d)(1) that start the running of the one-year period, that can give a federal habeas petitioner a new start. In this case, Pilarski was given an additional 60 days to file his Traverse and to argue that one of the other provisions covered his situation, making his Petition timely. Instead, in his Traverse, he argued that the Respondent misunderstands the AEDPA law regulating filing deadlines, and that application of 2244(d)(2), the tolling provision, makes his Petition timely.
With no disrespect intended, this provision does not help Pilarski, when he waited more than one year after the conclusion of direct review, and more than one year after the effective date of the AEDPA, before filing his first petition with the State courts for post-conviction review. He had already accumulated more than 364 days of what the Respondent calls "post-act delay" before filing his petition with the State. § 2244(d)(2) only tolls the running of the one-year period for the time that the petition is pending before the State courts. Therefore, the Court must add the time before it was filed to the time after the State courts concluded review. Tolling does not help this Petitioner because the one year period expired before he filed his petition for State post-conviction relief, so he had no time left for the State petition to toll.
As the Petitioner does not argue that any of the other events listed in § 2244(d) apply to his case, the Court must DISMISS his Petition as untimely.
IT IS SO ORDERED.