Opinion
CAUSE NO. 3:12-CV-269 PS
11-15-2012
DANNY TATE, Petitioner, v. SUPERINTENDENT, New Castle Correctional Facility, Respondent.
OPINION AND ORDER
Petitioner Danny Tate, a prisoner confined at the New Castle Correctional Facility, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. On April 14, 1998, Tate pled guilty in the Grant Superior Court to aggravated battery and crim inal deviate conduct and, on April 20, 1998, the court sentenced him to fifty years imprisonment (DE 6-1 at 5; DE 6-3).
28 U.S.C. § 2244(d)(1), as am ended by the Antiterrorism and Effective Death Penalty Act of 1996, provides that a petition for a writ of habeas corpus that seeks federal collateral relief from a state conviction must be filed within one year of the latest occurring of four events: (1) the date on which the judgm ent became final by the conclusion of direct review; (2) the date on which an unconstitutional im pediment to appeal, created by the state, has been rem oved; (3) the date on which the constitutional right asserted was recognized by the Unit ed States Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate for the claim s could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). The statute of limitations is tolled during the period in "which a properly filed application for Stat e post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 8-9 (2000).
A conviction is "final" whe n the time for seeking direct review from the judgment affirming the conviction has expired. Griffith v. Kentucky, 479 U.S. 314, 321 & n. 6 (1987). Rule 19 of the Indiana Rules of Crim inal Procedure provides that a "Notice of Appeal . . . m ust be filed within thirty (30) days after the date of sentencing." Tate was sentenced on April 20, 1998 (DE 6-1 at 5), so the thirty da ys within which he had to file a notice of appeal expired on May 20, 1998. Because Tate did not file a notice of app eal by that deadline, his statute of limitations began to run on May 20, 1998, and expired on May 20, 1999, unless it was tolled.
The statute of limitations is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgm ent or claim is pending." 28 U.S.C. § 2244(d)(2). The Petitioner filed a motion for modification of sentence on October 20, 1999, which was denied the f ollowing day (DE 6-1 at 5). On March 22, 2000, Tate filed a second motion for sentence modification which the trial court denied on March 30, 2000 (DE 6-1 at 6). On January 22, 2009, Tate filed a petition for post-conviction relief (DE 6-1 at 12), which the trial court denied on Novem ber 13, 2009 (DE 6-1 at 14). Tate did not appe al the trial court rulings denying his motions for modification of sentence or his petition for post-conviction relief (DE 6-1).
The Petitioner's sentence modification requests and his petition for post-conviction relief did not toll the statute of limitations because the statute of limitations had already expired before he filed any of them . See Williams v. Sims, 390 F.3d 958, 963 (7th Cir. 2004) (citing Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("an untimely state postconviction petition does not toll the statute of limitations"). The Clerk did not receive Tate's habeas petition until May 30, 2012, over thirteen years after the statute of lim itations expired. Accordingly, the petition is untimely under § 2244(d)(1)(A).
The petition is also untim ely under the balance of the provisions in § 2244(d)(1). The Petitioner does not allege that there was any im pediment to timely seeking collateral review of his conviction in state court. Accordingly, the federal claim s are barred as untim ely under 28 U.S.C. § 2244(d)(1)(B). The claims Tate presents in his petition for writ of habeas corpus are not founded nor are they alleged to be founded on new law made retroactively applicable to cases on collateral review or on facts that could not previ ously have been discovered with the exercise of due diligence. Thus, the petition is also barred as untimely under 28 U.S.C. § 2244(d)(1)(C) and (D).
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the Court m ust consider whether to grant the Petitioner a certif icate of appealability. To obtain a certif icate of appealability, a petitioner "must m ake a substantial showing of the denial of a constitutional right" by establishing " that reasonable jurists could debate whether (or, for that m atter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragem ent to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citations and quotations omitted).
When the court dismisses a petition on procedural grounds, the determination of whether a certificate of appealability should issue has two com ponents. Id. at 484-85. First, a pe titioner must show that reasonable jurists would find it debatable whether the court was correct in its procedural ruling. Id. at 484. Next, a petitioner must show that reasonable jurists would find it debatable whether the petition states a valid claim for denial of a constitutional right. Id. To obtain a certificate of appealability, the petitioner must satisfy both components. Id. at 485.
For the reasons stated above, I conclude that this petition is barred by the statute of limitations. The Petitioner has not established that juri sts of reason could debate the correctness of this procedural ruling or fi nd a reason to en courage him to proceed further. Accordingly, I decline to issue the Petitioner a certificate of appealability.
For the foregoing reasons, this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) (DE 1) is DISMISSED. The Clerk is DIRECTED to close this case, and the Petitioner is DENIED a certificate of appealability.
SO ORDERED.
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PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT