Opinion
No. 3:01cv0796 AS
February 27, 2002
MEMORANDUM AND ORDER
On or about November 9, 2001, this pro se petitioner, Richard Dean Smith, an inmate at the Plainfield Correctional Facility (PCF) in Plainfield, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Return filed by the Attorney General on behalf of the respondent on January 22, 2002, represents the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on February 20, 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. As a beginning point, there are two published opinions that need to be noted. The first is an opnion by the Supreme Court of Indiana reported at Smith v. State, 477 N.E.2d 857 (Ind. 1985), with Justice Hunter writing for the court and only Justice Prentice concurring in result without opinion. The remaining three justices concurred with Justice Hunter's opinion. The second published opnion is Smith v. State, 559 N.E.2d 338 (Ind.App. 1990), an opinion by Judge Sullivan of the Court of Appeals of Indiana with a concurring opnion by Judge Shields (now a United States Magistrate Judge in Indianapolis, Indiana), at 559 N.E.2d 348.
In addition to these two published opinions, there is an unpublished opinion by the Court of Appeals of Indiana entered on December 31, 1996, and attached hereto and incorporated herein as Appendix "A". This unpublished memorandum decision was authored by Judge Kirsch, and concurred in by Chief Justices Sharpnack and Judge Friedlander. Thus, the petitioner has had three decisions emanating from the highest court in the State of Indiana. With reference to the most recent 1996 decision by the Court of Appeals of Indiana, the Supreme Court of Indiana denied transfer on February 26, 1997.
It would appear that it is appropriate that the facts found by the two highest courts of the State of Indiana in these three opinions are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). After the last trip to the Court of Appeals in 1996, this petitioner returned to the State trial court in Lafayette, Indiana and sought to correct an erroneous sentence, which was denied by that court. Apparently, no appeal was taken therefrom. Also, in July, 2001, this petitioner sought permission from the Court of Appeals of Indiana under State law to file a successive petition for post-conviction relief, and that was denied by the Court of Appeals of Indiana on August 31, 2001. This case began in November 2001.
This Court must again revisit the question of the applicability of the one-year statute of limitations under 28 U.S.C. § 2244(d)(1). This Court has addressed various issues with regard to that statute of limitations. See Coleman v. Davis, 175 F. Supp.2d 1109 (N.D.Ind. 2001), Lloyd v. Miller, 152 F. Supp.2d 1119 (N.D.Ind. 2001), Wilson v. Anderson, 153 F. Supp.2d 927 (N.D.Ind. 2001), and Martin v. Jackson, 152 F. Supp.2d 1114 (N.D.Ind. 2001). The Court of Appeals for the Seventh Circuit has also addressed these issues in several opinions. See Smith v. Walls, 276 F.3d 34 (7th Cir. 2002), Johnson v. McCaughtry, 265 F.3d 559 (7th Cir. 2001), Rice v. Bowen, 264 F.3d 698 (7th Cir. 2001), (rehrg. and rehrg. en banc denied), Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892 (7th Cir. 2001), United States v. Marcello 212 F.3d 1005 (2000), Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999), Jones v. Bertrand, 171 F.3d 499 (7th Cir. 1999), and Grendron v. United States, 154 F.3d 672 (1998). Additionally, the Supreme Court of the United States has weighed in with the decision in Artuz v. Bennett, 531 U.S. 4 (2000). February 26, 1997 is a very important date, since the Supreme Court of Indiana denied transfer, as indicated above on that date. Understanding the brief time provision for the filing of a petition for certiorari to the Supreme Court of the United States, which was not done here, the petitioner then had a year to file for relief here. It is not really a close question since the law is very clear that this petition is not timely. The actions taken in the state courts in 1998 and again in 2001 does not toll the statute of limitations running. Once that basic decision is made, one cannot escape the applicability of the statute of limitations.
The Attorney General has argued on page six of his Return filed January 22, 2002, that even giving the petitioner the benefit of several doubts, this petition is still untimely, and the Attorney General is correct. The teaching of Tinker v. Hanks, 255 F.3d 444 (7th Cir. 2001) is supportive of this conclusion. This Court has no choice but to DENY the petition for relief under 28 U.S.C. § 2254.
IT IS SO ORDERED.