Gibson v. Superintendent

Filing 6

OPINION AND ORDER re 5 PETITION for Writ of Habeas Corpus filed by Petitioner Lionel Gibson. Habeas corpus relief pursuant to Section 2254 Habeas Corpus Rule 4 is DENIED because the Petition is untimely. Petitioner is DENIED a certificate of appeal ability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner is DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Clerk DIRECTED to close this case. Signed by Judge Rudy Lozano on 8/3/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LIONEL GIBSON,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 2:17-CV-144 RL

OPINION AND ORDER
This matter is before the Court on the amended petition under
28 U.S.C. Paragraph 2254 and 2241 for Writ of Habeas Corpus filed
by Lionel Gibson, a prisoner without a lawyer, on June 6, 2017.
ECF 5. For the reasons set forth below, the Court DENIES habeas
corpus relief pursuant to Section 2254 Habeas Corpus Rule 4 because
the petition is untimely, DENIES a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11, and DENIES leave
to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3).
The clerk is DIRECTED to close this case.

DISCUSSION
Gibson’s amended habeas corpus petition attempts to challenge
his conviction and 90 year sentence for murder and attempted murder
by the Lake County Superior Court in case 46G03-9703-CF-00043 on
January 8, 1999. ECF 5.
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Habeas Corpus petitions are subject to a strict one year
statute of limitations.1 There are four possible dates from which
the limitation period can begin to run. Nothing in this response
- nor anything else in the petition - indicates that State action
impeded him from filing a habeas corpus petition sooner or that
his claims are based on a newly recognized constitutional right or
newly discovered facts. Therefore 28 U.S.C. § 2244(d)(1)(B), (C),
and (D) are not applicable here. Thus the limitation period began

1 The statute of limitations for habeas corpus cases is set out in 28
U.S.C. § 2244(d) which 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 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
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection.

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to run pursuant to 28 U.S.C. § 2244(d)(1)(A) when the conviction
became final upon the expiration of the time for filing a direct
appeal. In this case, Gibson took a direct appeal to the Court of
Appeals of Indiana which affirmed his conviction on February 29,
2000. ECF 5 at 1. He did not petition for transfer to the Indiana
Supreme Court and his time to do so expired March 30, 2000. See
Ind. R. App. P. 57(C). The last day Gibson had to file a timely
habeas corpus petition in federal court was March 30, 2001.
However, his original petition was not signed until March 28, 2017.
Thus, it is 16 years late.
In response to question 9 (which asked him to explain why the
petition is timely), Gibson argues that his petition is timely
because he filed the petition within one year of the Indiana
Supreme Court’s denial of his petition to transfer his “Motion to
Correct Erroneous Sentence.” ECF 5 at 2, 8. On April 6, 2006,
Gibson filed a post-conviction relief petition with the State
court. ECF 5 at 2. This petition was denied on August 6, 2008. Id.
He did not appeal. Id. He then filed a “Motion to Correct Erroneous
Sentence” with the trial court on December 10, 2015. After his
motion was denied by the trial court and court of appeals, Gibson
sought to transfer to the Indiana Supreme Court. Id. The Indiana
Supreme Court denied transfer on November 3, 2016. Id.

However,

by the time Gibson filed his post-conviction relief petition, his
limitations period to file in federal court had already expired.
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Once

the

limitations

period

expired,

filing

another

post-

conviction relief petition did not “restart” the federal clock,
nor did it “open a new window for federal collateral review.” De
Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009).
Pursuant to Section 2254 Habeas Corpus Rule 11, a court must
consider whether to grant or deny a certificate of appealability.
To obtain a certificate of appealability when the court dismisses
a petition on procedural grounds, the petitioner must show that
reasonable jurists would find it debatable (1) whether the court
was correct in its procedural ruling and (2) whether the petition
states a valid claim for denial of a constitutional right. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Here, there is no basis for
finding that jurists of reason would debate the correctness of
this procedural ruling. Therefore there is no basis for encouraging
Gibson to proceed further. Thus a certificate of appealability
must be denied. For the same reasons, he may not appeal in forma
pauperis because an appeal could not be taken in good faith.

CONCLUSION
For the reasons set forth above, the Court DENIES habeas
corpus relief pursuant to Section 2254 Habeas Corpus Rule 4 because
the petition is untimely, DENIES a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11, and DENIES leave

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to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3).
The clerk is DIRECTED to close this case.

DATED: August 3, 2017

/s/RUDY LOZANO, Judge
United States District Court

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