Bates v. Superintendent

Filing 43

OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Kenneth R Bates. The Petition is DENIED because it is untimely and a Certificate of Appealability is DENIED. Signed by Senior Judge James T Moody on 9/27/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KENNETH R. BATES,
Petitioner,
v.
INDIANA ATTORNEY GENERAL,
Respondent.

)
)
)
)
)
)
)
)
)

No. 1:07 CV 248

OPINION and ORDER
Kenneth Bates, a pro se prisoner, initiated this habeas corpus proceeding
pursuant to 28 U.S.C. § 2254 to challenge his 2001 Indiana conviction and fifty year
sentence by the Allen Superior Court for robbery as an habitual offender. After this case
was fully briefed, the court dismissed the petition as untimely pursuant to 28 U.S.C.
§ 2244(d). Bates then filed a motion to alter or amend pursuant to Federal Rule of Civil
Procedure 59(e), which the court granted to permit additional briefing.
Habeas Corpus petitions are subject to a strict one year statute of limitations as
set forth in 28 U.S.C. § 2244(d). The statute sets out four possible times when the
limitation period can begin. Bates concedes that if the clock began to run when the
judgment became final on direct review as provided for in 28 U.S.C. § 2244(d)(1)(A),
that his petition is untimely.1 He does not assert that his claims are based on a newly

1

Bates argues that he is only 6 days (rather than 36 days) late, but this is a
distinction without a difference. Being late by even one day is enough to foreclose
habeas corpus review.
Foreclosing litigants from bringing their claim because they missed

recognized constitutional right or newly discovered evidence, therefore the start times
in § 2244(d)(1)(C) and (D) are not relevant here. Instead, Bates argues that he was
impeded from filing a habeas corpus petition and so the clock should not start until the
impediment was removed pursuant to § 2244(d)(1)(B).
Bates describes three ways in which he was impeded. First, he says that while he
was housed in federal prisons outside of Indiana, he did not have access to Indiana
legal research materials. In effect, “[h]e proposes that the year to file a federal petition
begins when a prisoner actually understands what legal theories are available. That is
not what § 2244(d)(1) says.” Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000).
If § 2244(d)(1) used a subjective rather than an objective standard, then
there would be no effective time limit, as Owens’s case illustrates. Like
most members of street gangs, Owens is young, has a limited education,
and knows little about the law. If these considerations delay the period of
limitations until the prisoner has spent a few years in the institution’s law

the filing deadline by one day may seem harsh, but courts have to
draw lines somewhere, statutes of limitation protect important social
interests, and limitation periods work both ways – you can be sure
[the petitioner] would not be pooh-poohing the prosecution’s
tardiness if [he] had been indicted one day after the statute of
limitations expired for [his] crimes.
United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citation omitted). See also
Simms v. Acevedo, 595 F.3d 774 (7th Cir. 2010).
Moreover, Bates is incorrect that he is only 6 days late. He argues that, pursuant
to 28 U.S.C. § 2244(d)(2), he is entitled to exclude the 30 days during which he could
have appealed the denial of his post-conviction relief petition. But Bates did not appeal
and “§ 2244(d)(2) makes no reference to the ‘time for seeking’ review of a state
postconviction court’s judgment. Instead, it seeks to know when an application for
‘State . . . review’ is pending.” Lawrence v. Florida, 549 U.S. 327, 334 (2007). Because Bates
did not appeal, nothing was pending during those 30 days and they are not excludable.
2

library, however, then § 2244(d)(1) might as well not exist; few prisoners
are lawyers.
Id. Moreover, Bates provides no explanation for how the lack of Indiana legal materials
prevented him from filing a federal habeas corpus petition. Indeed, he filed this petition
while he was housed in a federal prison outside of Indiana: USP Lee in Jonesville,
Virgina. In Lloyd v. Vannatta, 296 F.3d 630 (7th Cir. 2002), a similar argument was raised
and rejected by the Seventh Circuit. There, “[b]ecause Mr. Lloyd was able to file his
petition without a complete copy of his trial transcript, the state’s failure to provide a
complete transcript did not prevent Mr. Lloyd from pursuing any of his claims, and
§ 2244(d)(1)(B) does not apply to this case.” Id. at 633. So too here. Obviously the lack of
Indiana legal materials was not an impediment to the filing of this habeas corpus
petition.
Second, Bates argues that he was impeded because he has never received a copy
of the State court order denying his petition for post-conviction relief. Though he may
not have received a copy of that order before it was filed in this case on April 14, 2009,
(DE # 26-2 at 2), its absence clearly did not prevent him from filing this habeas corpus
petiton and therefore “§ 2244(d)(1)(B) does not apply to this case.” Id. Moreover, it is
clear that by May 23, 2007, he knew that his first post-conviction relief petition had been
denied because on that day the Allen County Clerk docketed his motion to file a
successive petition for post-conviction relief. (DE # 16-2 at 13.) That was three months

3

before the August 23, 2007, deadline for filing a habeas corpus petition.2 Therefore there
is no indication that the absence of a copy of that order impeded his ability to file a
habeas corpus petition.
Third, Bates argues that he was impeded because he did not have “access to his
Indiana State Court legal documents from on or about July 23, 2006, through January
2007 . . . .” (DE # 38 at 5.) However, he does not explain how this actually prevented
him from filing a habeas corpus petition given that he was able to file six other
documents in his post-conviction relief proceeding.3 “Although neither § 2244 nor this
circuit has defined what constitutes an ‘impediment’ for purposes of § 2244(d)(1)(B), the
plain language of the statute makes clear that whatever constitutes an impediment must
prevent a prisoner from filing his petition.” Lloyd v. Vannatta, 296 F.3d 630, 633 (7th Cir.
2002). Here, this temporary loss of access to his legal papers is insufficient to constitute
an impediment for purposes of § 2244(d)(1)(B). Thus, § 2244(d)(1)(B) does not establish
when the limitation period began.

2

On February 6, 2007, in response to Bates’ motion to stay his post-conviction
proceedings, the Allen Superior Court notified him that “[n]othing is currently pending
before the court.” (DE # 16-2 at 13.) Thus it appears that Bates likely knew that his case
had been dismissed more than six months before the deadline for filing a habeas corpus
petition expired.
3

On July 31, 2006, he filed a motion for new trial. On August 1, 2006, he filed a
motion for transfer. On August 2, 2006, he filed a notice of change of address. On
August 3, 2006, he filed a motion for transfer. On August 10, 2006, he filed a
notification. On January 4, 2007, he filed a motion to stay.
4

Rather, the limitation period began when “the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such
review”pursuant to § 2244(d)(1)(A). Bates has conceded that using this starting point,
his petition is late. However, he argues that he is entitled to equitable tolling.
“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, 560 U.S. 631 (2010) (quotation
marks and citation omitted). Equitable tolling is an extraordinary remedy that is “rarely
granted.” Obriecht v. Foster, – F.3d –, – , 08-1641, 2013 WL 4400263, at *2; 2013 U.S. App.
LEXIS 17186, at *7 (7th Cir. August 16, 2013). “Petitioners bear the burden of proving
that they qualify for equitable tolling.” Taylor v. Michael, 724 F.3d 806, 810 (7th Cir.
2013). “Equitable tolling excuses [an untimely] filing when the petitioner could not,
despite the exercise of reasonable diligence, have discovered all the information he
needed in order to be able to file his claim on time.” Obriecht, 2013 WL 4400263, at *5;
2013 U.S. App. LEXIS 17186, at *13 (brackets omitted).
Bates argues that he is entitled to equitable tolling because he did not have access
to his legal materials for roughly six months (from July 2006 to January 2007) and
because he did not receive a copy of the order denying his post-conviction relief
petition. Bates does not dispute having access to his legal materials after January 2007.
So to, the record demonstrates that by May 23, 2007, (and likely sooner) he knew that
his post-conviction relief petition had been denied. Thus, he had at least three months to

5

file a timely habeas corpus petition during which he had both access to his legal
materials and the knowledge that his post-conviction relief petition had been denied.
During those three months, he was clearly able to file documents explaining his claims
because he sought leave to file a successive petition in the State trial court (DE # 16-2 at
13) and the Court of Appeals of Indiana (DE # 16-11 at 4). But he “did not confirm the
date his habeas petition was due in federal court, despite having several months to do
so. That lack of action does not show reasonable diligence, and it does not show that
extraordinary circumstances actually prevented [him] from filing.” Taylor, 724 F.3d at
811. This lack of diligence is made all the more evident by the fact that even with his
mistaken belief that he was entitled to tolling during the 30 days when he could have
appealed the denial of his post-conviction relief petition, he was still 6 days late in filing
this habeas corpus petition.4 Thus, Bates does not meet the diligence prong of the
equitable tolling test. But neither does he meet the extraordinary circumstances prong.
Prisons are not uncommonly placed on lock down and inmates are regularly moved
both between and within prisons. Law library time is limited and inmates are not
infrequently placed in segregation. Thus, there is nothing extraordinary about Bates
having been without his legal materials for an extended period of time. Though not
receiving timely notice of the denial of his post-conviction relief petition was

4

Nevertheless, even if his misunderstanding of the law had been the difference
between a timely and untimely filing, “[l]ack of familiarity with the law, however, is not
a circumstance that justifies equitable tolling.” Taylor, 724 F.3d at 811.
6

extraordinary, it did not prevent him from filing a timely habeas corpus petition
because he had three months remaining when he found out.
When an inmate, despite roadblocks thrown in his way, has
reasonable time remaining to file a habeas petition in a timely manner,
the circumstances cannot, as a definitional matter, be said to have
prevented timely filing, as the standard requires. Even after the
alleged extraordinary circumstance . . . ended, Taylor had several
months during which to file an arguably timely habeas corpus
petition, but he miscalculated the due date and so did not.
[M]iscalculation of a deadline is simply not sufficient to warrant
equitable tolling . . . .
Taylor, 724 F.3d at 811-12 (citations, quotation marks, and brackets omitted). Therefore
this habeas corpus petition must be dismissed because it is untimely.
Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court
must consider whether to grant a certificate of appealability. When the court dismisses a
petition on procedural grounds, the determination of whether a certificate of
appealability should issue has two components. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). First, the petitioner must show that reasonable jurists would find it debatable
whether the court was correct in its procedural ruling. Id. at 484. If the petitioner meets
that requirement, then he must show that reasonable jurists would find it debatable
whether the petition states a valid claim for the denial of a constitutional right. Id. As
previously explained, this petition is untimely. Though Bates presents a sympathetic
case because he faced hardships during his post-conviction proceedings, those events
provide no explanation for his not filing a timely habeas corpus petition. The delayed
notice of the denial of his post-conviction petition may have impeded his ability to

7

appeal that judgment and thereby exhaust his claims in State court, but then it also
could have been the basis for cause and prejudice to excuse procedural default. Nothing
that Bates experienced caused him to file a late habeas corpus petition. Thus, there is no
basis for finding that jurists of reason would debate the untimeliness of this petition or
the inapplicability of equitable tolling. Therefore there is no reason to encourage him to
proceed further, and a certificate of appealability must be denied.
For the foregoing reasons, the habeas corpus petition is DENIED because it is
untimely and a certificate of appealability is DENIED.
SO ORDERED.
Date: September 27, 2013
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT