Sims v. Superintendent
Filing
13
OPINION AND ORDER: The Court DIRECTS the clerk to unrestrict access to the original habeas corpus petition 1 ; FINDS that this habeas corpus proceeding was timely filed; and ORDERS the Respondent to address the one ground raised by Sims in his amended habeas corpus petition 3 and file the complete State court record by 3/31/2016. Signed by Judge Rudy Lozano on 1/11/2016. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MACK SIMS,
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
CAUSE NO. 3:14-CV-1936
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 received by the
clerk from Mack Sims, a pro se prisoner, on October 27, 2014. For
the reasons set forth below, the court: (1) DIRECTS the clerk to
unrestrict access to the original habeas corpus petition (DE 1);
(2) FINDS that this habeas corpus proceeding was timely filed; and
(3) ORDERS the Respondent to address the one ground raised by Sims
in his amended habeas corpus petition (DE 3) and file the complete
State court record by March 31, 2016.
DISCUSSION
Mack Sims, a pro se prisoner, is challenging his conviction
and sentence by the Elkhart Superior Court under cause number
20D01-9311-CF-104 on December 1, 1994. The Respondent argues that
the
habeas
corpus
petition
must
be
dismissed
because
it
is
untimely. Habeas Corpus petitions are subject to a strict one year
statute of limitations. The statute provides four possible dates
from which the limitation period begins to run, but only two are
relevant in this case. The respondent argues that the court should
apply § 2244(d)(1)(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.” Sims argues that the court should apply
§ 2244(d)(1)(D): “the date on which the factual predicate of the
claim or claims presented could have been discovered through the
exercise of due diligence.”
Sims raise only one ground for relief in his amended habeas
corpus petition. He argues that he was prejudiced by the State’s
failure to disclose that the sole eyewitness at trial had been
hypnotized
information
to
enhance
until
his
2012
memory.
during
Sims
his
did
not
learn
post-conviction
this
relief
proceedings. The Seventh Circuit 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). Though the respondent questions whether Sims exercised
due diligence, the Indiana post-conviction relief court found that
“[t]he aforementioned evidence was ‘newly discovered evidence’” and
the Court of Appeals of Indiana did not disturb that finding. Sims
v.
State,
990
N.E.2d
523,
*3
(Ind.
2
Ct.
App.
2013)
(table).
Therefore this court accepts that it qualifies as newly discovered
evidence.
Therefore, the 1-year period of limitation began in 2012
pursuant to § 2244(d)(1)(D) when the factual predicate of the claim
was discovered through the exercise of due diligence. However, it
was
immediately
tolled
pursuant
to
§
2244(d)(2)
because
the
disclosure occurred during his post-conviction relief proceedings.
The tolling ended when the Indiana Supreme Court denied transfer on
October 3, 2013. DE 6-4 at 1. Thus, Sims had until October 3, 2014,
to file a timely habeas corpus petition. The amended petition (DE
3) was not signed and mailed until October 24, 2014. However, the
original petition (DE 1) was signed and mailed on September 29,
2014. Because the amended petition raised the same claim that was
included in the original, it relates back to that date. See Mayle
v. Felix, 545 U.S. 644, 654 (2005) (The principles of “relation
back” embodied in Federal Rule of Civil Procedure 15 apply to
habeas corpus cases.)
CONCLUSION
For the reasons set forth above, the court: (1) DIRECTS the
clerk to unrestrict access to the original habeas corpus petition
(DE 1); (2) FINDS that this habeas corpus proceeding was timely
filed; and (3) ORDERS the Respondent to address the one ground
3
raised by Sims in his amended habeas corpus petition (DE 3) and
file the complete State court record by March 31, 2016.
DATED: January 11, 2016
/s/RUDY LOZANO, Judge
United State District Court
4
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