Andrews v. Superintendent
Filing
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OPINION AND ORDER dismissing the petition for writ of habeas corpus pursuant to 28:2244(d)(1), denying the Petitioner a certificate of appealability ***Civil Case Terminated. Signed by Chief Judge Philip P Simon on 6/20/11. (smp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM EULIS ANDREWS,
Petitioner,
v.
SUPERINTENDENT,
Indiana State Prison,
Respondent.
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CAUSE NO. 3:10-CV-280 PS
OPINION AND ORDER
Petitioner William Andrews, a prisoner confined at the Indiana State Prison, filed
this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2002
Lake County convictions for four counts of murder, armed robbery, and battery for which
he was sentenced to an aggregate sentence of 288 years imprisonment. The Respondent
argues that this petition is barred by the statute of limitations. In his traverse, the Petitioner
addresses the merits of his claim, and argues that he should be excused from the statute of
limitations because failure to consider his claims on the merits would result in a
fundamental miscarriage of justice (DE 10-1 at 23-27).
Andrews was found guilty on October 11, 2002, and was sentenced on November
14, 2002 (DE 9-1 at 11). His convictions were affirmed on appeal on October 22, 2003 (DE
9-2 at 3), and the Indiana Supreme Court denied transfer on January 8, 2004 (DE 9-2 at 2-3).
Andrews filed a petition for post-conviction relief on July 14, 2004 (DE 9-1 at 9), which
pended until he was granted leave to dismiss his petition on September 15, 2005 (DE 9-1
at 7). He refiled his petition for post-conviction relief on July 26, 2007 (DE 9-1 at 7). The
Indiana Court of Appeals affirmed the denial of post-conviction relief on August 25, 2009
(DE 9-3 at 5), and the Indiana Supreme Court denied transfer on November 24, 2009 (DE
9-3 at 6). Andrews states that he placed his petition for writ of habeas corpus in the prison
mailing system on June 6, 2010 (DE 1 at 11), and his petition was received by the clerk’s
office on July 12, 2010.
Pursuant to 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996, a petition for writ of habeas corpus seeking federal collateral
relief from a state conviction must be filed within one year of the date on which (1) the
judgment became final by the conclusion of direct review; (2) a state created
unconstitutional impediment to appeal was removed; (3) the constitutional right asserted
was recognized by the United States Supreme Court and made retroactively applicable to
the states; or (4) the factual predicate for the claims could have been discovered through
the exercise of due diligence. A conviction is final when a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time has expired for a petition for
writ of certiorari. Griffith v. Kentucky, 479 U.S. 314, 321 n. 6 (1987). The statute of limitations
is tolled for that period during “which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4,5 (2000).
The Petitioner’s conviction became final on April 7, 2004, the date when the time to
seek direct review from the judgment affirming his conviction expired, See Griffith v.
Kentucky, 479 U.S. at 321 n. 6 (a conviction is “final” when the time for seeking direct
review from the judgment affirming the conviction has expired); Powell v. Davis, 415 F.3d
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722, 726 (7th Cir. 2005). Accordingly, the statute of limitations established by 28 U.S.C.
2244(d) began to run on April 7, 2004.
Andrews filed a petition for post-conviction relief on July 14, 2004, by which time
98 days of the statute of limitations period had expired. The petition for post-conviction
relief stayed the statute of limitations until Andrews withdrew it on September 15, 2005.
Upon withdrawal of the petition, the statute of limitations commenced running again, and
continued to run for 679 days until Andrews refiled his petition for post-conviction relief
on July 26, 2007. Terry v. Gaetz, 339 Fed.Appx. 646, 649-650 (7th Cir. 2009). By that time, the
one year statute of limitations period had already expired. Accordingly, this federal action
is not timely under the statute unless one of the other factual predicates stated in §
2244(d)(1) apply.
This petition for federal habeas relief is also untimely under the balance of the
provisions in § 2244(d)(1). The Petitioner’s submissions do not suggest that he was unable
to raise the claims set forth in his federal petition earlier because of an impediment created
by the state, that his claims are founded on new law made retroactively applicable to cases
on collateral review, or that his claims are based on facts that could not previously have
been discovered with the exercise of due diligence. Accordingly, this petition for writ of
habeas corpus is untimely under 28 U.S.C. § 2244(d)(1).
Andrews argues that he should be excused from the statute of limitations because
the failure to consider his claims would result in a “fundamental miscarriage of justice”
(DE 10-1 at 23-27), which he defines as “disregard for clearly established Supreme Court
Precedent” (DE 10-1 at 26). The Supreme Court, however, has held that “the ‘fundamental
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miscarriage of justice standard’ . . . is limited to situations where the constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Dellinger
v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
“To show ‘actual innocence,’ [a petitioner] must present clear and convincing evidence
that, but for the alleged error, no reasonable juror would have convicted him.” Dellinger
v. Bowen, 301 F.3d at 767.
The doctrine of fundamental miscarriage of justice has been used to allow a habeas
petitioner to avoid a procedural default. Murray v. Carrier, 477 U.S. 478, 496 (1986) (“we
think that in an extraordinary case, where a constitutional violation has probably resulted
in the conviction of one who is actually innocent, a federal habeas court may grant the writ
even in the absence of a showing of cause for the procedural default”). But a fundamental
miscarriage of justice argument does not excuse a habeas petitioner’s failure to comply
with the statute of limitations. Araujo v. Chandler, 435 F.3d 678, 680 (7th Cir. 2005), quoting
Ecscamilla v. Jundwirth, 426 F.3d 868, 872 (7th Cir. 2005) (“Prisoners claiming to be innocent,
like those contending that other events spoil the conviction, must meet the statutory
requirement of timely action”).
“Actual innocence” permits a second petition under § 2244(b)(2)(B) - it clears
away a claim that the prisoner defaulted in state court or by omission from
the first federal petition - but does not extend the time to seek collateral relief.
Section 2244(d) sets the timing rules for all petitions.
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Actual innocence without a newly discovered claim does nothing at all.
Although the statute leaves some (limited) room for equitable tolling, courts
cannot alter the rules laid down in the text. Section 2244(d) has a rule for
when new factual discoveries provide a fresh period for litigation; unless that
standard is met, a contention that the new discoveries add up to actual
innocence is unavailing.
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Ecscamilla v. Jundwirth, 426 F.3d at 871-72 (citations omitted).
Because Andrews does not assert that he is actually innocent of the charges against
him, he has not presented an actual miscarriage of justice argument. Dellinger v. Bowen, 301
F.3d at 767. But even if he had presented a colorable actual innocence claim, that would not
excuse his failure to file a timely petition for writ of habeas corpus. Ecscamilla v. Jundwirth,
426 F.3d at 872; Araujo v. Chandler, 435 F.3d at 680. For the reasons stated in this
memorandum, the Court concludes that this petition is barred by the statute of limitations
and must be dismissed.
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the Court must
consider whether to grant Andrews a certificate of appealability. To obtain a certificate of
appealability, a 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 encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
When the court dismisses a petition on procedural grounds, the determination of
whether a certificate of appealability should issue has two components. Id. at 484–85. First,
the petitioner must show that reasonable jurists would find it debatable whether the court
was correct in its procedural ruling. Id. at 484. Next, the petitioner must show that
reasonable jurists would find it debatable whether the petition states a valid claim for
denial of a constitutional right. Id. To obtain a certificate of appealability, the petitioner
must satisfy both components. Id. at 485.
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Andrews has not established that jurists of reason could debate the correctness of
this procedural ruling or find a reason to encourage him to proceed further. Accordingly,
the Court declines to issue Andrews a certificate of appealability.
For the foregoing reasons, the court DISMISSES this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2244(d)(1), DENIES the Petitioner a certificate of
appealability, and DIRECTS the Clerk to close this case.
SO ORDERED.
ENTERED: June 20, 2011
/s/ Philip P. Simon
Philip P. Simon, Judge
United States District Court
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