Stevenson v. Superintendent

Filing 3

OPINION AND ORDER DISMISSING 1 Petition for Writ of Habeas Corpus by Petitioner Michael D Stevenson; DENYING Certificate of Appealability. Signed by Judge Rudy Lozano on 5/20/2013. (lns)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHAEL D. STEVENSON,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 1:13-CV-118

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Michael D. Stevenson, a pro se prisoner, on
April

17,

2013.

For

the

reasons

set

forth

below,

the

court

DISMISSES this habeas corpus petition because it is untimely and
DENIES a certificate of appealability.

BACKGROUND
Michael D. Stevenson is challenging his conviction on multiple
counts and 21 year sentence by the Allen Superior Court under cause
number 02D04-0509-FB-129 on September 6, 2006. Stevenson plead
guilty and did not file a direct appeal. On May 14, 2007, he
initiated a proceeding in the Allen Superior Court challenging this
conviction and sentence. That proceeding was dismissed on May 17,
2007, and he did not appeal. On August 20, 2007, he filed a post-

conviction relief petition which was denied on September 6, 2007.
He did not appeal the denial of that petition either.

DISCUSSION
Pursuant to 2254 Habeas Corpus Rule 4, the Court must review
a habeas corpus petition and dismiss it if “it plainly appears from
the petition and any attached exhibits that the petitioner is not
entitled to relief . . ..” Because this petition is untimely, it
must be dismissed.
Habeas Corpus petitions are subject to a strict one year
statute of limitations.
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review;
(B) the date on which the impediment to
filing an application created by State action
in violation of the Constitution or laws of
the United States is removed, if the applicant
was prevented from filing by such State
action;
(C) the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or
(D) the date on which the factual
predicate of the claim or claims presented
could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
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respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Question 16 on the habeas corpus form asked Stevenson to
explain why the petition was timely. In response he wrote, “The
provisions of 28 USC §2244(d) does not apply to the Petitioner
because the USC only applies to United States citizens and the
Petitioner in not by law a United States citizen but a National.”
This is incorrect. “Section 2244(d) sets the timing rules for all
petitions." Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.
2005). Therefore it is irrelevant whether Stevenson is a United
States Citizen. All that matters is he is a prisoner attempting to
challenge a State court conviction with a habeas corpus petition
pursuant to 28 U.S.C. § 2254. Because he is, the 1-year period of
limitation set forth in 28 U.S.C. § 2244(d) is applicable to him,
his habeas corpus petition, and this case.
The statute provides four possible dates from which the
limitation period begins to run. Nothing in this petition indicates
that state action prevented Stevenson from filing this habeas
corpus petition sooner. Therefore § 2244(d)(1)(B) is inapplicable.
So too, nothing indicates that the petition is based on a newly
recognized Constitutional right nor newly discovered evidence.

3

Therefore §§ 2244(d)(1)(C) and (D) are also inapplicable.1 Thus,
pursuant to § 2244(d)(1)(A), the 1-year period of limitation began
when the judgment became final upon the expiration of the time for
seeking direct review.
Here, Stevenson was sentenced on September 6, 2006. He did not
take a direct appeal and the deadline for doing so expired on
October 6, 2006. See Indiana Rules of Appellate Procedure 9.A.(1).
Thus the first day of the 1-year period of limitation began on
October 7, 2006. When Stevenson initiated a collateral attack in
State court on May 14, 2007, that tolled the 1-year period of
limitation, but by that time, 219 days had elapsed – leaving only
146 days. The 1 year clock began again when that proceeding ended
on May 17, 2007. It was tolled again when he filed a postconviction relief petition on August 20, 2007, but by that time, 94
more days had elapsed – a total of 313 days – leaving only 52 days
when

the

clock

began

again

upon

the

dismissal

of

the

post-

conviction relief petition on September 6, 2007. Nothing else
tolled the 1 year clock which expired on October 28, 2007. Because
that was a Sunday, he had until October 29, 2007, to file a habeas
corpus petition. See Federal Rule of Civil Procedure 6(a)(1)(C).

1

For each ground raised (except for Ground 6 for which he provides no
explanation), Stevenson states that the reason that it was not presented to the
Indiana Supreme Court was because “The Petitioner was not knowledgeable of the
information at the time.” (DE 1 at 3-7) This is merely an assertion that
Stevenson did not have personal knowledge of the relevant facts or that he did
not understand the legal implications of them. However, the Seventh Circuit has
made clear that the time runs from the date when the evidence could have been
discovered through diligent inquiry, not when it was actually discovered or when
its significance was realized. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001).

4

However this petition was not signed until nearly five and a half
years later on April 11, 2013. Therefore it is untimely and must be
dismissed.
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. Because there is no basis for
finding that jurists of reason would debate the correctness of this
procedural ruling or find a reason to encourage him to proceed
further, a certificate of appealability must be denied.

CONCLUSION
For the reasons set forth above, the court DISMISSES this
habeas

corpus

petition

because

it

is

untimely

and

DENIES

certificate of appealability.
DATED: May 20, 2013

/s/RUDY LOZANO, Judge
United State District Court

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