White v. Superintendent

Filing 13

OPINION AND ORDER: Court DENIES 1 Petition for Writ of Habeas Corpus and DENIES White a certificate of appealability. The clerk is DIRECTED to close this case. Signed by Senior Judge James T Moody on 11/3/2016. cc: White (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JERRY D. WHITE,
Petitioner,
v.
SUPERINTENDENT
Respondent.

)
)
)
)
)
)
)
)
)

No. 3:15 CV 052

OPINION AND ORDER
Jerry D. White, a pro se prisoner, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his 2007 convictions for attempted murder and
criminal confinement in Elkhart County. State v. White, 20C01-0701-FA-1. In deciding
the petition, the Court must presume the facts set forth by the state courts are correct. 28
U.S.C. § 2254(e)(1). On appeal from the denial of post-conviction relief, the Indiana
Court of Appeals set forth the facts surrounding White’s offenses as follows:
On the night of January 19, 2007, Kimberly Walker and her sister, Pamela
Walker, returned to Kimberly’s residence. Kimberly was with her four
children, Ja.W., Ju.W., Ky.W., and Ka.W.; and Pamela was with her two
children, N.T. [ ] and J.J., and her boyfriend, Lathie Turnage.
Unbeknownst to anyone in the group, White, the father of Kimberly’s
children, was in the house. White used to live in the residence with
Kimberly and the children, but Kimberly had asked White to move out in
November or December of 2006.
Turnage, Pamela, and N.T. went into the front bedroom to lie down. A
few minutes later, White entered the front bedroom, turned on the light,
and told the three to come out of the room. After Pamela objected, White
pulled out a handgun and repeated his demand. Pamela grabbed N.T. and
began to exit the room, and Turnage began to get out of bed. White fired
at Turnage, but missed. White then moved closer to Turnage and fired

again, this time striking Turnage in the left temple. Turnage fell back into
the wall and then slumped to the floor.
Pamela began to run to the front door with N.T., but came back because
she realized that White was with J.J. White was still holding a gun and
waving it around. White instructed Pamela to sit on a couch, and she
complied. Kimberly, Ka.W., and Ky.W. were also on the couch. Ja.W. and
Ju.W. were on the floor in front of the couch in their sleeping bags. White
collected cell phones. At some point, J.J. attempted to leave out the back
door, but White demanded that he not leave the house.
At some point during the night, Turnage made a noise, and the group
realized that he was not dead. Throughout the rest of the night and
following morning, Pamela asked if she could get help for Turnage. White
denied her requests.
Around 10:00 a.m. the following morning, White took Kimberly and their
four children to a motel, where they stayed until January 23, when police
discovered their location and apprehended White. As soon as White left
the residence, Pamela called 911. Emergency responders transported
Turnage to the hospital. Turnage survived, but suffered what appears to
be permanent blindness.
The State ultimately charged White with attempted murder for shooting
Turnage; four counts of Class B felony confinement, two with regard to
Kimberly, and one each with regard to Pamela and Turnage; two counts
of Class C felony confinement with regard to J.J. and N.T.; and two counts
of Class D felony confinement with regard to Ju.W. and Ja.W.
On November 26 through 28, 2007, the trial court held a jury trial, at
which the jury found White guilty of all counts.
***
The trial court then sentenced White to consecutive terms of fifty years for
attempted murder, twenty years for one count of Class B felony
confinement, and ten years for one count of Class B felony confinement.
The trial court also sentenced White to concurrent terms of twenty years
for a third count of Class B felony confinement, eight years for each count
of Class C felony confinement, one and one-half years for each count of
Class D felony confinement. The trial court found that the fourth count of

2

Class B felony confinement merged with another count, and declined to
enter judgment on that count.
White v. State, No. 20A03–0803–CR–115, slip op. at 2–5 (Ind.Ct .App. July
29, 2008), trans. denied. White appealed, challenging the sufficiency of the
evidence and the appropriateness of his sentence. A panel of this Court
affirmed his convictions and sentence. [The Indiana Supreme Court
denied transfer on September 18, 2008. Ex. C.].
Next, [On September 10, 2009] White filed a petition for post-conviction
relief. [Ex. A at 4]. The court held a hearing, at which White was
represented by counsel. The court denied White’s petition.
White v. State, No. 20A03-1306-PC-238 (Ind. Ct. App. March 31, 2014), slip op. at 2-4.
Following an unsuccessful post-conviction process, White filed this federal
habeas petition, alleging his trial counsel was ineffective. However, this petition is
untimely.
Habeas corpus petitions are governed by the provisions of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336
(1997). AEDPA imposes 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
3

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.
28 U.S.C. § 2244(d).
The only issue is whether White’s petition was filed a year after the judgment
became final. Here, White’s conviction was affirmed by the Indiana Court of Appeals
and the Indiana Supreme Court denied transfer on September 18, 2008. (DE 9-3.) The 1year period of limitation from the expiration of the time for filing a petition for
certiorari with the United State Supreme Court, results in the judgment becoming final
on December 17, 2008. See Sup. Ct. R. 13(1) and Gonzalez v. Thaler, 132 S. Ct. 641, 653-54)
(“[T]he judgment becomes final . . . when the time for pursuing direct review . . .
expires.”). Under 28 U.S.C. § 2244(d)(1)(A), White had one year from that date, until
December 17, 2009, to file a timely habeas corpus petition, or to have a properly filed
petition for post-conviction relief that served to toll the statute of limitations.
White filed a petition for post-conviction relief on September 10, 2009. (DE 1 at
17; DE 10-1.) At that time, 267 days of the statutory period ran. The state post-conviction
proceeding tolled the statute of limitations until the Indiana Supreme Court denied
transfer on October 16, 2014. (DE 9-4.) White states that he placed his federal habeas
petition in the prison mailing system ninety-nine (99) days later, on January 23, 2015.
(DE 1 at 18.) If White placed his petition in the prison mailing system on January 23,
2015, he filed it 1 day after the statute of limitations period expired.
4

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 (2000). Citing to Dowell v. State, 922 N.E.2d 605 (Ind.), White argues in his traverse1
that this court should accept the date he submitted his state post-conviction petition to
prison officials for mailing, instead of the date it was file marked by the state court
clerk. (DE 10 at 5.) By doing this, the statute of limitations would have been tolled for a
longer period of time, and his federal habeas petition would be timely.
The date White’s state post-conviction petition was “filed” for purposes of 28
U.S.C. § 2244(d)(2) requires the court to look to state law. See Simms v. Acevedo, 595 F.3d
774, 777 (7th Cir. 2010). White is correct that Indiana has adopted a version of the prison
mailbox rule. Dowell v. State, 922 N.E.2d 605 (Ind. 2010); see also Ray v. Clements, 700 F.3d
993 (7th Cir. 2012) (mailbox rule applies to a pro se prisoner’s post-conviction filings
unless the state where the prisoner was convicted has clearly rejected the rule).
However, he does not appreciate that Indiana’s version is far different than the federal
prison mailbox rule, which “established a ‘bright-line rule’ that a pro se prisoner files a
[document in federal court] at the moment the prisoner delivers it to a prison official for
mailing to the court. Houston v. Lack, 487 U.S. 266, 275-76 (1988); Ray, 700 F.3d at 1002.

1

Notably, in his section 2254 petition he acknowledged that the state post-conviction petition was filed
on September 10, 2009. (DE 1 at 17.) Only after he realized his federal petition was untimely did he raise this
issue.

5

As the Indiana Supreme Court outlined in Dowell, the INDIANA RULES OF TRIAL
PROCEDURE expressly define when a document is deemed “filed” in the trial court.2
Dowell, 922 N.E.2d at 609. The TRIAL RULES provide that a document is “filed” when it is
physically delivered to the clerk of court; sent by electronic transmission pursuant to
local rules; delivered by a third-party commercial carrier; or “mail[ed] to the clerk by
registered, certified or express mail return receipt requested.” Id. (citing IND. TR. R. 5(F).)
As the Indiana Supreme Court explained, “[t]he gist of this is that when a party
transmits by an independently verifiable means (like registered mail or third-party
carrier), the filing is deemed to have occurred upon mailing or deposit. When other
means are used, filing occurs on the date the filing is in the hands of the clerk.” Id. at
609. Accordingly, when a prisoner uses regular mail rather than certified or registered
mail, his document is deemed filed on the date it was received by the clerk, not the date
he tendered it to the prison for mailing. Id.
Here, White has done nothing more than provide the court with a copy of his
petition for post-conviction relief. (See DE 10-1.) He has not provided any evidence or
argument showing that he satisfied the demands of Dowell or TRIAL RULE 5(F). He has
not shown, or even argued, that he sent his petition for post-conviction relief “by
electronic transmission pursuant to local rules; delivered by a third-party commercial
carrier; or “mail[ed] to the clerk by registered, certified or express mail return receipt

2

The INDIANA RULES OF TRIAL PROCEDURE apply to “all suits of a civil nature whether cognizable as
cases at law, in equity, or of statutory origin.” IND. TR. R. 1. This includes post-conviction proceedings. Bunch
v. State, 778 N.E.2d 1285, 1288 (Ind. 2002) (“[T]he Trial Rules apply to post-conviction relief proceedings.”)

6

requested.” Accordingly, his post-conviction petition was not deemed “filed” until the
date it was received by the clerk in September 10, 2009. Dowell, 922 N.E.2d at 609.
The Seventh Circuit Court of Appeals strictly applies the one year limitations
period in order to effectuate the purposes of Congress. See Modrowski v. Mote, 322 F.3d
965 (7th Cir. 2003) (affirming district court’s dismissal of section 2254 petition filed one
day late); see also United States v. Marcello, 212 F.3d 1005 (2000) (upholding dismissal of
section 2255 petition as untimely because it was one day late). As the court has
previously noted, “[f]oreclosing litigants from bringing their claim because they missed
the filing deadline by one day may seem harsh, but courts have to draw lines
somewhere, [and] statutes of limitations protect important social interests . . ..” Marcello,
212 F.3d at 1010. Thus, White’s petition is untimely and is procedurally defaulted.3
A habeas petitioner can overcome a procedural default by showing both cause
for failing to abide by state procedural rules and a resulting prejudice from that failure.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir.
2008), cert. denied, 129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural default is
defined as “some objective factor external to the defense” which prevented a petitioner

3

Timeliness aside, it cannot go unnoticed that White’s ineffective assistance of counsel claims are
without merit. Two of White’s three ineffective assistance claims are procedurally defaulted. As the
respondent points out, (DE # 9, 8-12), White never raised the claim that his trial counsel was ineffective for
failing to introduce evidence of petitioner’s domicile to the Indiana Supreme Court. Chambers v. McCaughtry,
264 F.3d 732, 737 (7th Cir. 2001). Similarly, White did not raise the claim in his amended petition for postconviction relief that his trial counsel was ineffective for failing to object to a jury instruction on self-defense.
Coleman v. Thompson, 501 U.S. 722, 729-32 (1991). The non-defaulted claim is that White’s attorney was
ineffective for failing to challenge the State’s alleged use of false testimony. However, as the respondent fully
explained, (DE# 9 at 13-20) the Indiana Court of Appeals correctly applied established federal law in
resolving that claim, and habeas relief is foreclosed. 28 U.S.C. § 2254(d).

7

from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492
(1986). Here, as White fails to acknowledge his untimely filing, he does not point to any
cause or resulting prejudice.
A habeas petitioner can also overcome a procedural default by establishing that
the Court’s refusal to consider a defaulted claim would result in a fundamental
miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this exception, the
petitioner must establish that “a constitutional violation has resulted in the conviction
of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A
petitioner who asserts actual innocence “must demonstrate innocence; the burden is his,
not the state’s[.]” Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in
original). Furthermore, actual innocence means “factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). White never claims that
his is actually innocent, and his arguments do not suggest an actual innocence claim.
Consequently, the court finds that he has not shown a fundamental miscarriage of
justice. Because White has not met his burden of establishing cause and prejudice to
excuse his procedural default or that the failure to consider the claim would result in a
fundamental miscarriage of justice, these claims are procedurally defaulted and cannot
be reviewed on their merits.
As a final matter, pursuant to RULE 11 of the RULES GOVERNING SECTION 2254
CASES, the court must either issue or deny a certificate of appealability in all cases where
it enters a final order adverse to the petitioner. To obtain a certificate of appealability,

8

the 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) (internal quotation marks and citation omitted). For
the reasons fully explained above, White’s claims are procedurally defaulted, and he
has not provided any meritorious basis for excusing his default. As such, jurists of
reason would not debate the outcome of the petition or find a reason to encourage him
to proceed further. Accordingly, the court declines to issue White a certificate of
appealability.
For these reasons, the petition (DE # 1) is DENIED and White is DENIED a
certificate of appealability. The clerk is DIRECTED to close this case.
SO ORDERED.
Date: November 3, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

9