Walton v. Warden
OPINION AND ORDER: The court DISMISSES the habeas petition 2 because it is untimely; DENIES Corey Walton a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and DIRECTS the Clerk to close this case. Signed by Senior Judge James T Moody on 2/17/2021. (Copy mailed to pro se party)(lhc)
USDC IN/ND case 2:18-cv-00448-JTM-JEM document 11 filed 02/17/21 page 1 of 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
No. 2:18 CV 448
OPINION and ORDER
Corey Walton, a prisoner without a lawyer, filed a habeas corpus petition under
28 U.S.C. § 2254 to challenge his convictions for attempted murder, attempted robbery,
and battery under Case No. 45A03-1409-CR-320. Following a trial, on August 6, 2014,
the Lake Superior Court sentenced him to thirty-seven years of incarceration.
The statute of limitations for habeas corpus cases is set forth in 28 U.S.C. §
2244(d), which provides:
(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
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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 postconviction 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.
On direct appeal, the Indiana Supreme Court denied Walton’s petition to transfer
on July 16, 2015. (DE # 7-3 at 4.) Therefore, his conviction became final for purposes of
28 U.S.C. § 2244(d)(1)(A) when the time for petitioning the Supreme Court of the United
States for a writ of certiorari expired on October 14, 2015. See U.S. Sup. Ct. R. 13(1)
(petition for writs of certiorari must filed within 90 days after entry of judgment);
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (when a state prisoner does not petition
the Supreme Court of the United States on direct appeal, his conviction becomes final
when the time for filing a petition expires). On June 13, 2016, two hundred and fortythree days later, Walton initiated post-conviction proceedings, which tolled the federal
limitations period until May 24, 2018, when the Indiana Supreme Court denied his
petition for transfer. (DE # 7-2 at 6; DE # 7-4 at 5.) The federal limitations period expired
one hundred and twenty-two days later, on September 23, 2018. As a result, when
Walton filed this habeas petition in November 2018, he was more than one month too
late. Therefore, the court denies the habeas petition as untimely.
Pursuant to Section 2254 Habeas Corpus Rule 11, the court must consider
whether to grant or deny a certificate of appealability. To obtain a certificate of
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appealability when a petition is dismissed 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 reasonable jurists would debate the correctness of this procedural ruling.
Therefore, there is no basis for encouraging Walton to proceed further, and a certificate
of appealability is denied.
For these reasons, the court:
(1) DISMISSES the habeas petition (DE # 2) because it is untimely;
(2) DENIES Corey Walton a certificate of appealability pursuant to Section 2254
Habeas Corpus Rule 11; and
(3) DIRECTS the Clerk to close this case.
Date: February 17, 2021
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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