Sims v. Superintendent
Filing
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OPINION AND ORDER: DISMISSING this petition pursuant to Rule4 of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2254(b)(1)(A). ***Civil Case Terminated. Signed by Judge William C Lee on 8/12/11. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL SIMS,
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Petitioner,
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v.
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SUPERINTENDENT, WABASH
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VALLEY CORRECTIONAL FACILITY, )
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Respondent.
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CAUSE NO. 3:11-CV-0297 WL
OPINION AND ORDER
Petitioner Michael Sims filed a petition for writ of habeas corpus under 28 U.S.C. §
2254 challenging his conviction. Pursuant to Rule 4 of the Rules Governing Section 2254
Cases, district courts are obligated to review a habeas corpus petition and to dismiss the
petition if “it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief . . ..”Id. This rule provides district courts with a gatekeeping
responsibility to sift through habeas corpus petitions and dismiss those petitions which
obviously lack merit.
According to the petition and its attachments, on May 4, 1989, the Petitioner was
convicted in the Elkhart Superior Court of attempted murder, rape while armed with a
deadly weapon, and criminal confinement, for which he received an aggregate sentence
of 120 years (DE 1-3 at 19). The Petitioner’s conviction was affirmed on appeal by the
Indiana Court of Appeals in August 1993, and the Indiana Supreme Court denied transfer
in September, 1993 (DE 1 at 1-2). On March 29, 2010, the Petitioner filed a motion to correct
erroneous sentence, which was denied the same day (DE 1 at 2). He attempted to appeal,
but the Indiana Court of Appeals dismissed his appeal (DE 1 at 4).
This petition is governed by 28 U.S.C. § 2244(d), as amended by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). Section 2244(d)(1)imposes a one-year statute
of limitations on state prisoners seeking habeas corpus relief. The statute of limitations
begins to run the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review, unless the statute was tolled
by a subsequent court proceeding or, pursuant to Section 2244(d)(2) (1), there was a state
created unconstitutional impediment to appeal was removed; (2) the constitutional right
asserted was recognized by the United States Supreme Court and made retroactively
applicable to the states; or (3) the factual predicate for the claims could have been
discovered through the exercise of due diligence. Section 2244(d)(2) provides that “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.”
A conviction is final when a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for filing a petition for writ of
certiorari to the United States Supreme Court has passed. Griffith v. Kentucky, 479 U.S. 314,
321 n. 6 (1987). The Petitioner’s judgment of conviction became final in December 1993,
before the provisions of the AEDPA went into effect. Any prisoner whose conviction
became final prior to the AEDPA’s enactment on April 24, 1996, received a one year grace
period within which to file a petition for writ of habeas corpus. Newell v. Hanks, 283 F.3d 827,
832 (7th Cir. 2002). Accordingly, the Petitioner’s statute of limitations expired on April 24,
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1997, Id. at 832-33, unless the statute was tolled by a subsequent state court proceeding or
one of the other predicates listed in Section 2244(d)(1) provided a later date for the
conviction becoming final or the statute was tolled by a subsequent state court proceeding.
According to the petition, the Petitioner filed a motion to correct erroneous sentence
on March 29, 2010, but that motion did not toll the statute of limitations because it was not
filed until long after the statute of limitations had expired. The Petitioner does not suggest
that he was unable to raise the claims set forth in his petition because of any impediment
created by the state, that his claims are founded on new law retroactively applied to cases
on collateral review, or that the factual predicates for his claims could not have been
discovered by the exercise of due diligence. Accordingly, this petition is barred by the
statute of limitations.
For the foregoing reasons, the court DISMISSES this petition pursuant to Rule
4 of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2254(b)(1)(A).
SO ORDERED
DATED: August 12, 2011
s/William C. Lee
William C. Lee, Judge
United States District Court
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