Smith v. Superintendent

Filing 3

OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner Jeremy Wayne Smith. The Petition for Writ of Habeas Corpus is DISMISSED as untimely. Petitioner is DENIED a certificate of appealability. Signed by Judge Rudy Lozano on 1/11/16. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JEREMY WAYNE SMITH,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:15-CV-174

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus received from
Jeremy Wayne Smith, a pro se prisoner, on April 16, 2015. For the
reasons set forth below, the court DISMISSES this habeas corpus
petition because it is untimely and

DENIES

a certificate of

appealability.

DISCUSSION
Jeremy Wayne Smith, a pro se prisoner, is attempting to
challenge his convictions and the 85 year sentence imposed by the
DeKalb Circuit Court on June 28, 2000, under cause number 17C010003-CF-5. Habeas Corpus petitions are subject to a strict one year

statute of limitations.1 Question 16 asked Smith to explain why
this petition is timely. In response, he wrote: “Because I had a
properly filed post-conviction relief and other collateral reviews
with respect to the pertinent judgments and claims and shall not be
counted toward any limitation under this subsection.” DE 1 at 6.
Neither this answer nor the claims raised in the petition indicate
that they are based on newly discovered evidence or a newly
recognized constitutional right. Neither is there any indication
that a state-created impediment prevented him from filing his
federal petition on time. Accordingly, pursuant to 28 U.S.C. §
2244(d)(1)(A), the 1-year period of limitation began on the date
when the judgment became final upon the expiration of the time for
seeking direct review of his conviction and sentence.

1

28 U.S.C. § 2254(d) provides that:
(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.

2

Here, Smith plead guilty and was sentenced on June 28, 2000.
DE 1 at 1. He filed a direct appeal and on June 28, 2002, the
Indiana Supreme Court remanded the case for re-sentencing. Id. It
is unclear when Smith was re-sentenced. Nevertheless, Smith is
correct

that

while

his

post-conviction

relief

proceeding

was

pending in the State court, the 1-year period of limitation was
tolled. See 28 U.S.C. § 2244(d)(2). However, he did not appeal the
denial of that petition and the tolling ended on December 3, 2008.
DE 1 at 2. Therefore the 1-year period of limitation began again2
on December 4, 2008, and expired on December 3, 2009. Because this
habeas corpus petition was not signed until more than five years
later on April 8, 2015, it is untimely.
Though Smith sought authorization from the Court of Appeals of
Indiana to file a successive post-conviction relief petition on May
17, 2012, by then the habeas corpus deadline had already expired.
Nevertheless, because he request was denied, even if the deadline
had not yet expired, that 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

2

If it had not already expired. The Indiana Supreme Court issued its
opinion remanding for re-sentencing on June 28, 2002. Smith did not file his
post-conviction relief petition until more than three years later on July 19,
2005. It seems likely that the 1-year period of limitation expired before Smith
filed his post-conviction relief petition. However, even if no time expired
before it was filed, this habeas corpus petition is still untimely.

3

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).
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

petitioner.

where

To

it

obtain

enters
a

a

final

certificate

order

to

the

appealability,

of

adverse

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
quote marks and citation omitted). As explained, the petition was
not timely filed. Nothing before the court suggests that jurists of
reason could debate the correctness of this procedural ruling or
find

a

reason

Accordingly,

the

to

encourage

court

this

declines

appealability.

4

to

case

to

issue

proceed
a

further.

certificate

of

CONCLUSION
For the reasons set forth above, the court DISMISSES this
habeas

corpus

petition

because

it

is

untimely

and

DENIES

certificate of appealability.

DATED: January 11, 2016

/s/RUDY LOZANO, Judge
United State District Court

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