Opinion
No. 3:02cv0277 AS
November 7, 2002
MEMORANDUM AND ORDER
On April 12, 2002, pro se petitioner, Vincent Thompson, 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 October 8, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on October 30, 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. The Office of the Attorney General of Indiana needs to be more careful in detailing the relevant citations in this species of cases. This Court has frequently suggested the same, but apparently without any results at all. For example, in the October 8, 2002 filing by the Attorney General of Indiana, there is a lengthy quotation from an opinion from the Supreme Court of Indiana. There is no citation to that case anyplace in the Memorandum, but simply a reference to Exhibit C. Exhibit C does not contain a reference or cite to that decision, so this Court was put in the position of having to do the Attorney General's research when a simple citation to a Supreme Court case would have sufficed.
This Court wasted valuable time in trying to find a decision from the Supreme Court of Indiana and was unable to do so. Closer examination disclosed that the extensive quotation purporting to be from the Indiana Supreme Court on pages two and three of the Memorandum filed by the Attorney General of Indiana on October 8, 2002, was in fact from an unpublished memorandum decision of the Court of Appeals of Indiana entered July 4, 1998, authored by Judge Darden and concurred in by Judges Hoffman and Robb. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein.
It is to be fervently hoped that the Office of the Attorney General will be more professionally careful in this regard. It is also true that with reference to this opinion by the Court of Appeals of Indiana, the Supreme Court of Indiana did indeed deny transfer on September 23, 1998, and no petition for certiorari was sought to the Supreme Court of the United States. On November 17, 1998, this petitioner returned to the state trial court in Indianapolis, Indiana seeking post-conviction relief under state law. That state trial court conducted an evidentiary hearing on May 18 and August 3, 1999, thereafter denying such relief on September 8, 1999. With regard to that denial, this petitioner commenced the processes for an appeal to the Court of Appeals of Indiana on October 7, 1999, and tendered the record to the Clerk of that court on January 7, 2000. It is asserted that that record arrived two days late under state law and remained unfiled.
Thereafter, the petitioner did not pursue any effort for the state court of appeals to accept the late record, and that court dismissed the purported appeal on February 25, 2000. The petitioner then filed for permission to file a successive petition for state post-conviction relief on November 29, 2001, which the Court of Appeals of Indiana denied on February 8, 2002. Apparently, this petition was prepared and signed by the petitioner on April 10, 2002, which gives him the benefit of Houston v. Lack, 487 U.S. 266 (1988), for what it may be worth. Certainly, the facts in the decision of the Court of Appeals of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
The Attorney General of Indiana asserts that this petition is now barred by the provisions in the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), which is a one-year statute of limitations. See 28 U.S.C. § 2244(b)(1). This issue is an ongoing one in the federal judiciary. See Artuz v. Bennett, 531 U.S. 4 (2000). The Attorney General of Indiana argues this petitioner's conviction was final on December 22, 1998. See Griffith v. Kentucky, 479 U.S. 314 (1987). The petitioner filed his petition for state post-conviction relief on November 17, 1998. Since the petitioner had filed a state post-conviction relief petition before his convictions were final, the statute of limitations was tolled until the conclusion of that review under provisions of 28 U.S.C. § 2244(d)(2). The Court of Appeals of Indiana dismissed the attempted appeal from the denial of post-conviction relief on February 25, 2000. Therefore, the petitioner had a year until February 25, 2001 to file his petition for relief here under 28 U.S.C. § 2254. Giving this petitioner the benefit of the rule in Houston, the petition is considered as filed on April 10, 2002. See Jones v. Bertrand, 171 F.3d 499 (7th Cir. 1999). This petitioner waited well after February 25, 2001 to seek that review under 28 U.S.C. § 2254, and there is no principled way to find a tolling of the statute of limitations above described. Therefore, this Court has no choice but to DISMISS this petition, and such is now ORDERED.