Davis v. Superintendent
OPINION AND ORDER: The court DISMISSES this habeas corpus petition because it is untimely and DENIES a certificate of appealability. Signed by Judge Rudy Lozano on 11/25/2015. (lhc)(cc: Davis)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
CAUSE NO. 2:14-CV-424
OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus received from
Donald Davis, a pro se prisoner, on November 17, 2014. For the
reasons set forth below, the court DISMISSES this habeas corpus
petition because it is untimely and
a certificate of
Donald Davis, a pro se prisoner, is attempting to challenge
his convictions and the 40 year sentence imposed by the Lake
Superior Court on February 12, 2010, under cause number 45G03-0901FA-4. The respondent argues that the habeas corpus petition must be
dismissed because it is untimely. Habeas Corpus petitions are
subject to a strict one year statute of limitations.1
The statute provides four possible dates from which the
limitation period begins to run. The respondent argues that the
court should apply § 2244(d)(1)(A) and calculate the 1-year period
of limitation from the expiration of the time for filing a petition
for certiorari with the United State Supreme Court following the
Indiana Supreme Court’s denial of the petition for transfer on
April 21, 2011. Using that date, the judgment became final on July
20, 2011. See Sup. Ct. R. 13(1) and Gonzalez v. Thaler, 565 U.S.
__, __; 132 S. Ct. 641, 653-54; 181 L. Ed. 2d 619, 636 (2012).
(“[T]he judgment becomes final . . .when the time for pursuing
direct review . . . expires.”).
28 U.S.C. § 2254(d) provides that:
(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
(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 respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
Davis does not disagree with the accuracy of those dates, nor
specifically argue that July 20, 2011, is not the proper date to
begin the 1-year period of limitation. Rather, he appears to argue
that the court should apply 28 U.S.C. § 2244(d)(1)(B) because State
action impeded his ability to file a timely habeas corpus petition.
Specifically he asserts that guards denied him access to his legal
materials following emergency surgery on March 14, 2013. Though he
does not say precisely how long he was without access to his legal
materials, he does say that he mailed a motion to the State court
two weeks later on March 29, 2013. DE 11 at 5. The Lake Superior
Court docket sheet shows that the clerk received filings from him
on April 4, 2013; May 8, 2013; May 16, 2013; and June 5, 2013. DE
6-2 at 8. “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. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (quotation
marks omitted). Given his demonstrated ability to submit filings to
the State court, the brief delay caused by the temporary lack of
access to his legal materials does not qualify as an impediment
which prevented him from filing a habeas corpus petition.
Therefore the 1-year period of limitation began on July 20,
2011, and continued to run until Davis filed a post-conviction
relief petition on January 12, 2012. Doing so tolled the 1-year
period of limitation, but by then, 175 days had elapsed and Davis
only had 190 days remaining.2 The tolling ended when the trial
court denied his post-conviction relief petition on February 28,
2013. Though Davis sought to appeal, because he was late and the
Indiana Courts did not authorize his appeal, the 1-year period of
limitation was not tolled as a result of those efforts. Cf. Powell
v. Davis, 415 F.3d 722, 726-27 (7th Cir. 2005) (“Because an
unauthorized successive petition is not considered ‘properly filed’
under Indiana law, the one-year limit was not extended under §
2244(d)(2)” while the petitioner’s request to pursue a successive
petition was pending.) Therefore the 1-year period of limitation
began again on March 1, 2013, and expired 190 days later on
September 6, 2013. Because this habeas corpus petition was not
filed until more than a year after that date, it is untimely.
Davis notes that he had surgery on September 17, 2013. Though
there might be circumstances where a medical condition could
justify equitable tolling, this is not one of them. “[A] petitioner
is entitled to equitable tolling only if he shows (1) that he has
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
When necessary, the 1-year period of limitation is counted as (and
divided into) days. See Holland v. Florida, 560 U.S. 631, 638 (2010) (“At that
point, the AEDPA federal habeas clock again began to tick – with 12 days left on
the 1-year meter.”)
that is rarely granted. Obriecht v. Foster, 727 F.3d 744, 748 (7th
Cir. 2013). “Petitioners bear the burden of proving that they
qualify for equitable tolling.” Taylor v. Michael, 724 F.3d 806
(7th Cir. 2013).
Here, Davis had surgery almost two weeks after the deadline
expired. Clearly the surgery did not prevent him from filing a
habeas corpus petition and he gives no indication that his medical
condition prior to surgery interfered with his ability to do so.
Moreover, even if he was disabled prior to and during surgery, he
did not demonstrate diligence after surgery by promptly filing a
habeas corpus petition when he recovered. State court docket sheets
show that he submitted filings on May 19, 2014; May 22, 2014; June
6, 2014; June 12, 2014; July 2, 2014; and July 7, 2014. DE 6-1 at
conditions may have placed on him, they clearly did not prevent him
from submitting filings in the State courts. Nevertheless, he did
not sign this habeas corpus petition and place it into the prison
mailing system until more than a year later on November 13, 2014.
“That lack of action does not show reasonable diligence, and it
does not show that extraordinary circumstances actually prevented
[him] from filing.” Taylor v. Michael, 724 F.3d 806, 811 (7th Cir.
2013). Thus, Davis is not entitled to equitable tolling and this
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
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.
explained, this petition is untimely and Davis has not presented a
colorable claim for equitable tolling. Because there is no basis
for finding that jurists of reason would debate the correctness of
these rulings or find a reason to encourage him to proceed further,
a certificate of appealability must be denied.
For the reasons set forth above, the court DISMISSES this
certificate of appealability.
DATED: November 25, 2015
/s/RUDY LOZANO, Judge
United State District Court
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