Price v. Superintendent

Filing 6

OPINION AND ORDER DISMISSING 1 Petition for Writ of Habeas Corpus filed by Petitioner Jacob Lee Price and DENYING a certificate of appealability. Signed by Judge William C Lee on 11/19/2015. (cc: Price) (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JACOB LEE PRICE,

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:15-CV-167 WL

OPINION AND ORDER
Jacob Lee Price, a pro se prisoner, filed a habeas corpus petition attempting to challenge the
20 year habitual offender enhancement to his convictions by the Tippecanoe Superior Court under
cause number 79D01-9007-CF-86 on April 5, 1991. However, 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).

Question 16 on the habeas corpus form included the entire text of 28 U.S.C. § 2244(d) and
asked Price to explain why the petition was timely. His response was, “The Petitioner is within the
one-year period pursuant to the above provision of 28 U.S.C. § 2244(d). The Indiana Court of
Appeals declined to authorize the filing of the [successive post-conviction relief] petition on
November 26, 2014.” DE 1 at 5. Neither that response, nor anything else in the petition indicates
that state action prevented him from filing this habeas corpus petition sooner or that the petition is
based on a newly recognized Constitutional right or newly discovered evidence. Therefore §§
2244(d)(1)(B), (C), and (D) do not determine when the 1-year period of limitation began to run.
Pursuant to § 2244(d)(1)(A), the period would have begun when the judgment became final
upon the expiration of the time for seeking direct review. In this case, that was when the deadline
for filing a petition for certiorari with the United States Supreme Court expired on August 26, 1992.
See Sup. Ct. R. 13(1) and 30(1). However, because his conviction became final before the habeas
corpus statute of limitations became law on April 24, 1996, that date is when his 1-year period of
limitations began. See Graham v. Borgen, 483 F.3d 475, 478 (7th Cir. 2007). Pursuant to 28 U.S.C.
§ 2244(d)(2), the period is tolled while he had a pending post-conviction relief petition. Here, Price
filed a post-conviction relief petition on December 8, 1995, and that proceeding did not end until
June 28, 2013. DE 1 at 2. So his 1 year deadline began counting down the next day. It expired a year
later on June 30, 2014. See Federal Rule of Civil Procedure 6(a)(1)(C) (excludes the last day if it is
Saturday, Sunday, or a legal holiday). Because this habeas corpus petition was not signed until April
9, 2015, it is untimely and must be dismissed.
Though Price sought authorization from the Court of Appeals of Indiana to file a successive
post-conviction relief petition on October 7, 2014, by then the habeas corpus deadline had already
expired. Nevertheless, because he request was denied, even if the deadline had not yet expired, that
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filing would not have tolled the 1-year period of limitation. See Powell v. Davis, 415 F.3d 722,
726-27 (7th Cir. 2005) (“Because an unauthorized successive petition is not considered ‘properly
filed’ under Indiana law, the one-year limit was not extended under § 2244(d)(2)” while the
petitioner’s request to pursue a successive petition was pending.). Moreover, the state court’s refusal
to authorize a successive post-conviction relief petition did not “restart” the federal clock, nor did
it “open a new window for federal collateral review.” De Jesus v. Acevedo, 567 F.3d 941, 943 (7th
Cir. 2009).
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 would find
it debatable whether the petition states a valid claim for the 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.
For these reasons, the court DISMISSES this habeas corpus petition because it is untimely
and DENIES a certificate of appealability.
SO ORDERED.
ENTERED: November 19, 2015

s/William C. Lee
William C. Lee, Judge
United States District Court

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