Salazar-Arvisu v. Superintendent
Filing
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OPINION AND ORDER dismissing petition pursuant to 28:2244(d)(1) and denying certificate of appealability. Clerk to close case. Signed by Judge William C Lee on 9/18/2012. (kds)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JUAN SALAZAR-ARVISU,
Petitioner,
v.
SUPERINTENDENT, INDIANA
STATE PRISON,
Respondent.
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CAUSE NO. 3:12-CV-148 WL
OPINION AND ORDER
Petitioner Juan Salazar-Arvisu is a prisoner confined at the Miami Correctional
Facility who filed a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state
conviction. On August 23, 2007, the Petitioner pleaded guilty in the Elkhart Superior Court
to dealing in methamphetamine, and was sentenced to twenty-five years imprisonment.
(DE 9-1 at 6-7). The Petitioner did not file a direct appeal challenging his conviction or
sentence, but he filed a motion for modification of sentence on November 26, 2007 (DE 9-1
at 7), on July 29, 2008, he filed an incomplete petition for post- conviction for relief (DE 9-2
at 2), and on October 29, 2008, he properly filed his petition for post-conviction relief (Id.).
On July 30, 2009, the trial court denied the Petitioner’s petition for post-conviction (DE 9-2
at 5). On February 11, 2011, the Indiana Court of Appeals affirmed the denial of
post-conviction relief (DE 9-4). The Petitioner did not seek transfer to the Indiana Supreme
Court (DE 9-3).
The clerk received the Petitioner’s petition for writ of habeas corpus on March 30,
2012. But the “mailbox” rule, established in Houston v. Lack, 487 U.S. 266 (1988), provides
that a prisoner’s submission to the court is to be deemed as “filed” on the date he delivers
it to prison authorities for forwarding to the court. The Petitioner signed his petition for
writ of habeas corpus on March 26, 2012 (DE 1 at 9), so, for the purposes of this
memorandum, the Court deems his petition to have been filed on March 26, 2012.
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 from the latest occurring of four
events. The one-year period of limitation runs from the latest of: (1) the date on which the
judgment became final by the conclusion of direct review; (2) the date on which an
unconstitutional impediment to appeal, created by the state, has been removed; (3) the date
on which the constitutional right asserted was recognized by the United States Supreme
Court and made retroactively applicable to cases on collateral review; or (4) the date on
which the factual predicate for the claims could have been discovered through the exercise
of due diligence. 28 U.S.C. § 2244(d)(1). 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, 8-9 (2000).
A conviction is “final” when the time for seeking direct review from the judgment
affirming the conviction has expired. Griffith v. Kentucky, 479 U.S. 314, 321 & n. 6 (1987).
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Rule 19 of the Indiana Rules of Criminal Procedure provides that a “Notice of Appeal . . .
must be filed within thirty (30) days after the date of sentencing.” Salazar was sentenced
on August 23, 2007 (DE 9-1 at 6-7). The thirty days within which the Petitioner had to file
a notice of appeal expired on September 22, a Saturday, so his notice of appeal was due by
Monday, September 24, 2007. Because the Petitioner did not file a notice of appeal by that
deadline, his statute of limitations began to run on September 24, 2007.
The statute of limitations is tolled while “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). The Petitioner filed a motion for modification of
sentence which was filed and denied on November 26, 2007 (DE 9-1 at 7). The Petitioner
properly filed his petition for post-conviction relief on October 29, 2008 (DE 9-2 at 2), which
did not serve to toll the statute of limitations because the statute of limitations expired
before that date. See Williams v. Sims, 390 F.3d 958, 963 (7th Cir. 2004) (citing Artuz v.
Bennett, 531 U.S. 4, 8 (2000); Freeman v. Page, 208 F.3d 572, 574 (7th Cir. 2000)). Moreover,
even had the time period been tolled by the filing of the petition for post-conviction relief,
the petition would still be untimely because the review of the Petitioner’s post-conviction
proceeding ended on March 13, 2011, the time in which to seek transfer from the Indiana
Court of Appeals decision affirming the denial of post-conviction relief expired. The
Petitioner did not file his habeas petition until March 26, 2012, over a year after the time
within which he had to seek transfer expired. Accordingly, the petition is untimely under
§ 2244(d)(1)(A).
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The petition is also untimely under the balance of the provisions in § 2244(d)(1). The
Petitioner does not allege that there was any impediment to filing his petition for state
post-conviction relief. Accordingly, the federal claims are barred as untimely under 28
U.S.C. § 2244(d)(1)(B). Further, the claims in the petition are not founded nor are they
alleged to be founded on new law made retroactively applicable to cases on collateral
review or on facts that could not previously have been discovered with the exercise of due
diligence. Thus, the petition is barred as untimely under 28 U.S.C. § 2244(d)(1)(C) and (D).
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the Court must
consider whether to grant the Petitioner 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,
a petitioner must show that reasonable jurists would find it debatable whether the court
was correct in its procedural ruling. Id. at 484. Next, a 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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For the reasons stated in this memorandum, the Court concludes that this petition
is barred by the statute of limitations. The Petitioner 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 the Petitioner 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
DATED: September 18, 2012
s/William C. Lee
William C. Lee, Judge
United States District Court
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