Littles v. Superintendent
Filing
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OPINION AND ORDER: This case is DISMISSED as untimely and a certificate of appealability is DENIED, ***Civil Case Terminated. Signed by Judge Rudy Lozano on 12/15/11. (jld)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PHILLIP LITTLES,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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NO. 3:11-CV-424
OPINION AND ORDER
This matter is before the Court on the amended Petition under
28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Phillip Littles, a pro se prisoner, on
December 8, 2011. For the reasons set forth below, the Court
DISMISSES this habeas corpus petition because it is untimely and
DENIES a certificate of appealability.
BACKGROUND
Phillip Littles is challenging his conviction and 50 year
sentence for Murder by the St. Joseph Superior Court under cause
number 71D08-0412-FA-00119 on February 29, 2008. Littles did not
file a direct appeal. On January 5, 2009, he filed a postconviction relief petition which was denied on May 7, 2010. He did
not appeal the denial of that petition.
DISCUSSION
Pursuant to 2254 Habeas Corpus Rule 4, the Court must review
a habeas corpus petition and dismiss it if “it plainly appears from
the petition and any attached exhibits that the petitioner is not
entitled to relief . . ..” Because this petition is untimely, it
must be dismissed.
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 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.
28 U.S.C. § 2244(d).
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The statute provides four possible dates from which the
limitation period begins to run. In response to Question 16,
Littles gives no indication that state action prevented him from
filing
this
habeas
corpus
petition
sooner.
Therefore
§
2244(d)(1)(B) is inapplicable. Neither does he assert that any of
his
grounds
for
relief
are
based
on
a
newly
recognized
Constitutional right nor newly discovered evidence. Nor are any of
his grounds based on such claims. Therefore §§ 2244(d)(1)(C) and
(D) are also inapplicable. Therefore, pursuant to § 2244(d)(1)(A),
the 1-year period of limitation began when Littles’ judgment became
final upon the expiration of the time for seeking direct review.
Here, Littles was sentenced on February 29, 2008. He did not
take a direct appeal and the deadline for doing so expired on March
31, 2008. See Indiana Rules of Appellate Procedure 9.A.(1) and 25.
Thus the first day of the 1-year period of limitation began on
April 1, 2008. When Littles filed his post-conviction relief
petition on January 5, 2009, that tolled the 1-year period of
limitation, but by that time, 279 days had elapsed – leaving only
86 days. When the post-conviction relief petition was denied on May
7, 2010, the 1-year period of limitation continued with the 280th
day on May 8, 2010. The deadline expired on August 1, 2010, but
because that was a Sunday, he had until on August 2, 2010, to file
a habeas corpus petition. See Federal Rule of Civil Procedure
6(a)(1)(C). This petition was not signed until more than a year
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later on December 4, 2011. Therefore it is untimely and must be
dismissed.
Littles also states that he initiated two other proceedings
(one in state court and one in federal court) after the 1-year
period of limitation expired. Because the deadline had already
passed, neither of those proceedings could toll the clock because
it had already run out. Nevertheless, even if they had been filed
before the deadline, neither would have tolled the 1-year period of
limitation. The state court proceeding would not have done so
because a motion to modify sentence is not a collateral attack for
purposes of § 2244(d)(2). See Price v. Pierce, 617 F.3d 947, 950
(7th Cir. 2010) (describing types of state court collateral review
procedures that qualify for tolling under Section 2244(d)(2)). The
federal court proceeding would not have done so because it was not
a state court proceeding as required by § 2244(d)(2).
Finally, pursuant to Rule 11 of the Rules Governing Section
2254 Cases, the court must consider whether to grant a certificate
of appealability. When the court dismisses a petition on procedural
grounds,
the
determination
of
whether
a
certificate
of
appealability should issue has two components. Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). First, the petitioner must show that
reasonable jurists would find it debatable whether the court was
correct in its procedural ruling. Id. at 484. If the petitioner
meets that requirement, then he must show that reasonable jurists
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would find it debatable whether the petition states a valid claim
for denial of a constitutional right. Id. As previously explained,
this petition is untimely. Because there is no basis for finding
that jurists of reason would debate the correctness of this
procedural ruling or find a reason to encourage him to proceed
further, a certificate of appealability must be denied.
CONCLUSION
For the reasons set forth above, the court DISMISSES this
habeas
corpus
petition
because
it
is
untimely
and
DENIES
certificate of appealability.
DATED:
December 15, 2011
/s/RUDY LOZANO, Judge
United States District Court
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