Kochopolous v. Superintendent
Filing
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OPINION AND ORDER: The Petition 6 is DISMISSED WITH PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and the petitioner is DENIED a certificate of appealability. Signed by Judge Rudy Lozano on 10/6/2015. (cc: Kochopolous)(rmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHN RICHARD
KOCHOPOLOUS,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 2:14-CV-272
OPINION AND ORDER
This matter is before the Court on the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, filed by Petitioner,
John Richard Kochopolous, a pro se prisoner, on October 22, 2014.
(DE #6.)
For the reasons set forth below, the petition (DE #6) is
DISMISSED WITH PREJUDICE pursuant to RULE 4
OF THE
RULES GOVERNING
SECTION 2254 CASES, and the petitioner is DENIED a certificate of
appealability.
BACKGROUND
Kochopolous is serving a 12-year sentence for a operating a
vehicle with a lifetime suspension and while intoxicated, both
committed in Lake County, Indiana.
State v. Kochopolous, Nos.
45G04-1169-FC-00002 and 45G04-0903-FC-30. In deciding the petition,
the court must presume the facts set forth by the state courts are
correct. 28 U.S.C. § 2254(e)(1).
It is Kochopolous’s burden to
rebut this presumption with clear and convincing evidence. Id. On
direct appeal, the Indiana Court of Appeals summarized the facts
underlying Kochopolous’s offenses as follows:
On January 7, 2009, the State charged Kochopolous in Lake
County with Operating a Vehicle After Lifetime
Suspension, a Class C felony, and Operating a Vehicle
While Displaying an Incorrect Registration Number, a
traffic infraction, under cause number 45G04-0901-FC-2.
On March 6, 2009, the State charged Kochopolous with
Operating a Vehicle After Lifetime Suspension, Operating
a Vehicle While Intoxicated, as a Class A misdemeanor,
and Operating a Vehicle While Intoxicated, as a Class C
misdemeanor under cause number 45G04-0903-FC-30.
On September 4, 2009, Kochopolous pled guilty to the
charges in both causes without the benefit of a plea
agreement.
When questioned by the trial court as to
Kochopolous’s decision to plead guilty, his attorney
stated he had spoken with Kochopolous at length about the
risks of going to trial versus pleading guilty and that
the result of the conversation was Kochopolous’s decision
to plead guilty.
The trial court asked numerous
questions to verify that the pleas were being entered
freely and voluntarily and then reviewed the rights being
given up with Kochopolous, ending with: “Sir, you are
convicting yourself by pleading guilty. Do you understand
that?” Hearing transcript at 21. Kochopolous answered
affirmatively. The trial court then took the pleas under
advisement.
On September 17 and 30, 2009, letters were received by
the Lake County Superior Court Clerk’s Office from
Kochopolous contending that he had been forced by his
defense attorney to plead guilty to the charges, that he
was innocent and that he wished to withdraw his guilty
pleas. At the sentencing hearing on October 1, 2009, the
trial court heard argument regarding Kochopolous’s pro se
request to withdraw his guilty pleas. The trial court
asked Kochopolous if he remembered the guilty plea
hearing and the long discussion of the implications of
pleading guilty. He answered that he did not remember
because he had a poor memory due to a prior motorcycle
accident that put him in a coma for forty-five days.
When the trial court asked why he thought he could beat
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the charges against him, Kochopolous explained in detail
what he perceived to be the weaknesses of his case. The
trial court responded: “Well, how do you remember that if
you got a bad memory?” Tr. at 39. Kochopolous replied,
“Because I got—maybe I should just shut up.” Id. The
trial court denied the motion, accepted the guilty pleas,
entered judgment in both cases and imposed an aggregate
sentence of twelve years.
Kochopolous v. State, Cause Number 45A05-0911-CR-634, slip op. 2-3
(Ind. Ct. App. June 7, 2010) (Attached as Ex. G.)
Kochopolous
appealed,
claiming
the
trial
denying his motion to withdraw his guilty pleas.
judge
erred
by
(Id. at 2.)
On
June 7, 2010, the Indiana Court of Appeals affirmed the trial
court.
(Id. at 4.)
Kochopolous did not seek review in the Indiana
Supreme Court. (DE #13-3.) On October 21, 2010, Kochopolous filed
a petition for post-conviction relief, which was denied on November
7, 2012.
(DE ##13-1, 13-2, 13-8, 13-9.)
On October 16, 2014, Kochopolous tendered his petition to
prison officials for mailing.
(DE #6 at 5.)
In it, Kochopolous
seeks a new trial claiming that he was “railroaded by the Lake
County Superior Criminal Court” because they “tried him” when he
wanted a change of venue and that his attorney did not effectively
represent him because the evidence was insufficient to establish
that he was driving or operating the vehicle.
(Id. at 2-4.)
DISCUSSION
Kochopolous’s petition is governed by the provisions of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
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See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under 28 U.S.C. §
2244(d), habeas petitions are subject to a strict one-year statute
of limitations, set forth as follows:
(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;
© 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.
Upon review, none of Kochopolous’s claims implicate newly
discovered evidence or a newly recognized constitutional right, nor
does he claim that a state-created impediment prevented him from
filing his federal petition on time.
28
U.S.C.
§
2244(d)(1)(A)
(See DE #6 at 6.) Therefore,
applies.
Under
that
provision,
Kochopolous had one year from the date his convictions became final
to pursue federal habeas relief.
As stated above, Kochopolous’s
convictions were affirmed by the Indiana Court of Appeals on June
7, 2010, and he did not seek review in the Indiana Supreme Court.
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Therefore, his convictions became final on July 7, 2010, when the
time for seeking review in the Indiana Supreme Court expired.
See
IND. APP. R. 57(C)(1) (petition to transfer must be filed within 30
days of appellate court judgment); Gonzalez v. Thayer, 132 S. Ct.
641, 653-54 (U.S. 2012) (when a state prisoner does not seek direct
review in the state court of last resort, his conviction becomes
final when the time for seeking such review expires).
A properly filed application for state post-conviction relief
will toll the limitations period under 28 U.S.C. § 2244(d)(2).
Kochopolous filed a post-conviction petition challenging both
convictions on September 21, 2010.
(DE ##13-1, 13-2, 13-8, 13-9.)
At that time, 76 days had expired of the statute of limitations
period.
Kochopolous
February
23,
2011,
withdrew
and
the
his
post-conviction
trial
September 7, 2011. (DE ##13-8, 13-9.)
court
petition
“reactivated”
it
on
on
During that period of time
Kochopolous did not have a petition filed or claims pending, 196
days expired of the statute of limitations period for a total of
272 days.
The trial court then denied Kochopolous post-conviction
relief on November 7, 2012, but Kochopolous did not seek review by
any appellate court. (DE #13-8, 13-9.) The statute of limitations
period began to run again at that time.
Kochopolous had an
additional 93 days, or until February 11, 2013, to file his federal
habeas petition.
Kochopolous did not file a petition before that
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deadline, and instead he waited until October 2014 to seek federal
habeas relief.
When asked to explain why his petition is timely under the
provisions of 28 U.S.C. § 2244(d), Kochopolous failed to provide
any explanation.
(DE #1 at 5.)
He fails to acknowledge that he
did not seek federal habeas relief within one year of the date his
convictions became final.
In fact, while the Respondent has
provided evidence and argument as to why Kochopolous’s petition is
untimely, Kochopolous has failed to file a traverse or otherwise
challenged the respondent’s position.
grounds
for
excusing
the
He does not provide any
untimeliness
of
the
petition.
Accordingly, the petition must be dismissed.
Pursuant to RULE 11
OF THE
RULES GOVERNING SECTION 2254 CASES, the
court must either issue or deny a certificate of appealability in
all cases where it enters a final order adverse to the petitioner.
To obtain a certificate of appealability under 28 U.S.C. § 2253(c),
the petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented
were
adequate
to
deserve
further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quote marks and citation omitted).
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encouragement
to
proceed
When the court has dismissed the petition on procedural
grounds,
the
determination
of
whether
a
appealability should issue has two components.
certificate
of
Id. at 484–85.
First, the petitioner must show that reasonable jurists would find
it
debatable
whether
procedural ruling.
that
reasonable
the
district
Id. at 484.
jurists
would
court
was
correct
in
its
Next, the petitioner must show
find
it
debatable
whether
the
petition states a valid claim for denial of a constitutional right.
Id. Each is a threshold inquiry; thus, the court need only address
one component if it will resolve the issue.
Id. at 485.
For the
reasons fully explained above, Kochopolous’s petition was not
timely filed. Nothing before the court suggests that jurists of
reason could debate the correctness of this procedural ruling or
find
a
reason
to
encourage
Kochopolous
to
proceed
further.
Accordingly, the court declines to issue him a certificate of
appealability.
CONCLUSION
For the reasons set forth above, the petition (DE #6) is
DISMISSED WITH PREJUDICE pursuant to RULE 4
OF THE
RULES GOVERNING
SECTION 2254 CASES, and the petitioner is DENIED a certificate of
appealability.
DATED: October 6, 2015
/s/ RUDY LOZANO, Judge
United States District Court
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