Love v. Superintendent
Filing
10
OPINION AND ORDER denying 6 request that petition be dismissed as untimely; denying 7 MOTION for Relief from Order to Produce State Court Record. Respondent to breif the merits of the petition and produce the state court record by 1/24/2012. Signed by Judge Jon E DeGuilio on 11/15/11. (ksc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
EDDIE E. LOVE,
Petitioner,
v.
SUPERINTENDENT, INDIANA
STATE PRISON,
Respondent.
)
)
)
)
)
)
)
)
)
)
Cause No. 3:11-CV-167 JD
OPINION AND ORDER
Eddie Love, a pro se prisoner, filed this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his 2006 Elkhart County convictions for two counts of dealing in cocaine
[DE 1]. The Respondent argues that the petition should be dismissed as untimely [DE 6]. For the
reasons stated below, the Court finds that the petition was timely filed.
This petition is governed by the provisions of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA,
habeas corpus petitions are subject to a strict one-year statute of limitations:
(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 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.
28 U.S.C. § 2244(d).
Here, Love was found guilty and on July 6, 2006, was sentenced to an aggregate term of 18
years in prison [DE 5-1 at 8]. In January 2007, he sought leave to file a belated appeal, which was
granted [Id. at 8-9; DE 5-2 at 5]. The Indiana Court of Appeals affirmed his conviction and sentence
in all respects on October 30, 2007 [DE 5-6]. The Indiana Supreme Court denied transfer on January
3, 2008 [DE 5-2 at 4]. Love filed a petition for post-conviction relief in state court on May 30, 2008
[DE 5-1 at 11], which he withdrew without prejudice on December 30, 2008 [DE 5-1 at 12]. He filed
an amended petition on February 18, 2009, which was denied on January 27, 2010 [DE 5-1 at 14,
33]. The Indiana Court of Appeal affirmed the denial of post-conviction relief on January 18, 2011
[DE 5-10], and the Indiana Supreme Court denied transfer on March 17, 2011 [DE 5-3 at 5]. On
April 14, 2011, Love tendered his federal petition to prison officials for mailing [DE 1 at 9].
The Respondent argues that the petition is untimely [DE 6]. In the Respondent’s view,
because Love filed a belated direct appeal, his conviction became “final” for purposes of 28 U.S.C.
§ 2244(d)(1)(A) 30 days after he was sentenced, rather than after the belated appeal proceedings
concluded [DE 6]. This argument has no merit. In Jimenez v. Quarterman, 444 U.S. 113 (2009), the
U.S. Supreme Court held that when a state grants a criminal defendant the right to file a belated
2
direct appeal, his conviction is not “final” for purposes of 28 U.S.C. § 2244(d)(1)(A) until the
belated appeal proceedings are concluded. As the U.S. Supreme Court recognized, finality cannot
attach until the appeals process is completed, since the petitioner’s conviction remains “capable of
modification through direct appeal to the state courts and to this Court on certiorari review.”
Jimenez, 555 U.S. at 120. Thus, “[t]he statute requires a federal court, presented with an individual’s
first petition for habeas relief, to make use of the date on which the entirety of the state direct appeal
review process was completed.” Id. at 686. Here, that date was January 3, 2008, when the Indiana
Supreme Court denied Love’s petition to transfer [see DE 5-2 at 4].
An analysis of the other applicable dates indicates that the petition is timely. Love did not
seek review in the U.S. Supreme Court after his petition to transfer was denied, and so his conviction
became final—and the one-year clock for filing a federal petition began running—when the time
for seeking certiorari review expired on April 2, 2008. See Martinez v. Jones, 556 F.3d 637, 638 (7th
Cir. 2009). The limitations period ran for 58 days until Love filed his state post-conviction petition
on May 30, 2008, tolling the limitations period under 28 U.S.C. § 2244(d)(2). The federal clock
began running again when Love withdrew his state post-conviction petition on December 30, 2008,
and another 50 days elapsed before he filed an amended petition on February 18, 2009. The clock
remained tolled under 28 U.S.C. § 2244(d)(2) until the state post-conviction proceedings came to
a conclusion on March 17, 2011, when the Indiana Supreme Court denied Love’s petition to transfer.
The clock began running again and ran for 28 days until Love tendered his federal petition to prison
officials for mailing on April 14, 2011. In sum, a total of 136 days elapsed on the federal clock
before Love filed this petition. The petition was therefore filed well within the one-year deadline
contained in 28 U.S.C. § 2244(d)(1)(A).
3
In support of his argument that the Petition was not timely filed, the Respondent relies on
Griffith v. Kentucky, 479 U.S. 314 (1987).1 However, Griffith is inapplicable. That case held that a
new rule for the conduct of criminal prosecutions, such as the rule announced in Batson v. Kentucky,
476 U.S. 79 (1986), applies retroactively to all cases that are not yet final, including those pending
on direct review; the case did not, however, address the issue of “finality” for purposes of 28 U.S.C.
§ 2244(d)(1)(A) or otherwise discuss the deadline for filing a federal habeas petition. Indeed,
Griffith was decided a decade before AEDPA was enacted, and two decades before Jimenez was
decided. As stated above, Jimenez expressly held that when the petitioner is permitted to pursue a
belated direct appeal, his conviction does not become final for purposes of 28 U.S.C.
§ 2244(d)(1)(A) until the belated appeal process is concluded.
Therefore, the Court finds the Respondent’s argument regarding timeliness unavailing.
Because the petition was timely filed, the Court does not reach the petitioner’s arguments in his
traverse that he is entitled to tolling of the deadline [see DE 8].
For these reasons, the Respondent’s request that the petition be dismissed as untimely [DE
6] is DENIED. The Respondent’s motion for relief from the order requiring production of the state
court record [DE 7] is also DENIED. The Respondent is ordered to brief the merits of the petition
and to produce the state court record on or before January 24, 2012.
1
The Respondent also relies on an Indiana case applying Griffith. See Gutermuth v. State, 868 N.E.2d 427,
434 (Ind. 2007). That case held that a belated appeal does not constitute “direct review” for purposes of the
retroactivity rule announced in Griffith. The case does not address the issue of finality under 28 U.S.C. §
2244(d)(1)(A), which in any event is a matter of federal law.
4
SO ORDERED.
ENTERED: November 15, 2011
/s/ JON E. DEGUILIO
Judge
United States District Court
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?