Futch v. Superintendent
OPINION AND ORDER: The habeas corpus petition is DENIED. This case is DISMISSED. Kenny L. Futch is DENIED a certificate of appealability. Signed by Judge Robert L Miller, Jr on 8/3/2015. (lhc)(cc: Futch)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KENNY L. FUTCH,
CAUSE NO. 3:14-CV-1925 RM
OPINION AND ORDER
Kenny L. Futch, a pro se prisoner, filed an amended habeas corpus petition (DE 10)
challenging his convictions for dealing cocaine and aggregate 17 year sentence by the Allen
Superior Court on July 17, 2012 under cause number 02D05-1111-FB-250. The respondent
argues that the petition is untimely. Habeas corpus petitions are subject to a strict one year
statute of limitations. 28 U.S.C. § 2244(d) provides four possible dates from which the
limitation period begins to run.
(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.
The respondent argues that the court should apply § 2244(d)(1)(A) and calculate the oneyear period of limitation starting from July 10, 2013, because that is when the conviction
became final upon the expiration of the time for filing a petition for certiorari.1 Mr. Futch
didn’t file a post-conviction relief petition, so the statute of limitations wasn’t tolled
pursuant to § 2254(d)(2). Consequently the one-year period of limitations would have
expired on July 10, 2014. Because the first document2 Mr. Futch filed in this case wasn’t
signed until September 18, 2014, (DE 1 at 3) this case couldn’t have been timely filed.
Mr. Futch responds that “[a]rguably assuming that July 10, 2014, was the date at
issue here to have sought habeas, certiorari, post-conviction relief and or review – it would
be the State again causing such long delay by erroneously holding on to the record
transcribed completely October 10, 2012, thus only needed copying?” DE 30 at 31. This is
consistent with the explanation he provided in his petition for why it was timely:
The Indiana Supreme Court denied transfer on April 11, 2013. However, “the judgment becomes
final . . .when the time for pursuing direct review . . . expires.” Gonzalez v. Thaler, 565 U.S. __, __; 132 S. Ct.
641, 653-54; 181 L. Ed. 2d 619, 636 (2012). That time did not expire until 90 days later when the deadline for
filing a petition for certiorari to the United States Supreme Court expired on July 10, 2013. See Sup. Ct. R. 13(1)
(establishing that petitions for certiorari must be filed within 90 days).
Mr. Futch began this case by filing a document captioned, “Notice of Intent to Petition for
Review/Appeal.” DE 1 at 1. He did not sign his first habeas corpus petition until November 26, 2014. DE 6-2
This application is made expeditiously after counsel settled the record
and it became available to relator, the issues were hidden, diligent pro se
actions were biasly struck down and the trial court’s jurisdiction became an
issue wheretofore it failed to act when it was under a duty to act against
police, prosecution, and counsel misconduct who’s actions and inactions
were consistent with bad faith, sabotage, confederates, and mercenaries who
failed to have rescued themselves do/due to laboring under conflict in that
the higher court failed to take notice thereof.
DE 10 at 17. These arguments make clear that Mr. Futch believes that state actors delayed
his filing of a habeas corpus petition by keeping him from obtaining the record of his case.
The state’s failure to provide Mr. Lloyd with a transcript did not
prevent him from filing his habeas corpus petition, and the time limit
contained in § 2244(d)(1)(B) does not apply to this case. Although neither §
2244 nor this circuit has defined what constitutes an “impediment” for
purposes of § 2244(d)(1)(B), the plain language of the statute makes clear that
whatever constitutes an impediment must prevent a prisoner from filing his
Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (emphasis in original). So too here. The
absence of the record didn’t prevent Mr. Futch from filing a habeas corpus petition. All Mr.
Futch needed to file a habeas corpus petition was the ability to write to this court and
knowledge of what claims had been previously raised and exhausted in the State courts as
required by 28 U.S.C. § 2254(b)(1). The dockets of the state trial and appellate courts show
that he wrote to those courts five times between July 10, 2013, and July 20, 2014. DE 24-1
at 4 and DE 24-2 at 2. His direct appeal counsel sent him a copy of the appellant’s brief on
November 19, 2012. DE 30 at 6. Thus, state actors neither prevented him from writing to
the courts nor from knowing what issues had been previously raised and exhausted.
Section 2244(d)(1)(B) is not applicable to this case either.
Mr. Futch also argues that he needed the state record to discover new claims that
hadn’t been previously raised. However, “[a]s a matter of law, new evidence supporting
a claim actually made at or before trial cannot form the basis of a new period under §
2244(d)(1)(D).” Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) abrogated on other
grounds by McQuiggin v. Perkins, 569 U.S. __; 133 S. Ct. 1924; 185 L. Ed. 2d 1019 (2013). To
qualify as a claim based on newly discovered evidence, the claim must be presented within
one year from “the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(D). The court of appeals has made clear that the time runs from the date when
the evidence could have been discovered through diligent inquiry, not when it was actually
discovered or when its significance was realized. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.
2001). The “desire to see more information in the hope that something will turn up differs
from ‘the factual predicate of a claim or claims’ for purposes of § 2244(d)(1)(D). The district
judge therefore was right to use § 2244(d)(1)(A) to identify the last day [the petitioner] had
to get a collateral attack under way.” Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004)
(brackets omitted). Though it’s understandable why Mr. Futch would want to see all of the
information in the official record, nothing in it can be considered newly discovered
evidence because that record was merely an accumulation of the documents and transcripts
of the trial proceedings he participated in. Even if there were documents that he hadn’t
seen during his trial, the factual predicate of any claims arising out of those documents still
would have been accessible to him during those proceedings. Section 2244(d)(1)(D) doesn’t
apply to this case either.
Mr. Futch also asserts that he is entitled to equitable tolling. “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631 (2010) (quotation marks and citation
omitted). Equitable tolling is an extraordinary remedy that is rarely granted. Obriecht v.
Foster, 727 F.3d 744, 748 (7th Cir. 2013). “Petitioners bear the burden of proving that they
qualify for equitable tolling.” Taylor v. Michael, 724 F.3d 806 (7th Cir. 2013). Mr. Futch
argues that he worked diligently to get the state court record and that the delay in getting
it was an extraordinary circumstance that kept him from being able to file a habeas corpus
petition. As already explained, the delay in obtaining a copy of the state court record didn’t
prevent him from filing either a habeas corpus or a post-conviction relief petition. He isn’t
entitled to equitable tolling.
Because the statute of limitations expired on July 10, 2014, this case must be
dismissed as untimely filed. 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, 484-485
(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, he must show that reasonable jurists would find it debatable whether the
petition states a valid claim for the denial of a constitutional right. Id. As already 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 will be denied.
For the foregoing reasons, the habeas corpus petition is DENIED. This case is
DISMISSED. Kenny L. Futch is DENIED a certificate of appealability.
ENTERED: August 3 , 2015.
/s/ Robert L. Miller, Jr.
United States District Court
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?