Crockett v. Superintendent

Filing 5

OPINION AND ORDER: Court DISMISSES this habeas corpus petition because it is untimely and DENIES a certificate of appealability. Signed by Judge Rudy Lozano on 1/15/2016. cc: Crockett (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM B. CROCKETT, III, )
)
Petitioner,
)
)
vs.
)
)
SUPERINTENDENT,
)
)
Respondent.
)

CAUSE NO. 3:15-CV-384

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 from
William B. Crockett, III, a pro se prisoner, on August 27, 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
William B. Crockett, III, a pro se prisoner, is attempting to
challenge his murder conviction and the 65 year sentence imposed by
the St. Joseph Superior Court on January 25, 2005, under cause
number 71D01-0310-MR-27. Habeas Corpus petitions are subject to a
strict one year statute of limitations.1 Question 16 asked Crockett
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--

to explain why this petition is timely. In response, this is what
he wrote:
Petitioner’s timely direct appeal was denied on
December 28, 2005. He filed his petition for postconviction relief 140 days later on May 17, 2006. The 365
days a petitioner ordinarily has to file a federal habeas
petition, minus 140 days, is 225 days remaining. Adding
the 90 days allowed for petitioning the U.S. Supreme
Court for a writ of certiorari leaves a total of 315
days. Balsewicz v. Kingston, 425 F.3d 1029, 1032 (7th
Cir. 2005). The final State court ruling on his petition
was on October 16, 2014. He therefore has 315 days from
that date, i.e., until August 27, 2015, to file this
petition.
DE 1 at 5.
Neither that answer nor the one ineffective assistance of
counsel ground 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

(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

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.
Crockett’s answer to Question 16 recognizes the applicability
of § 2244(d)(1)(A) and how to apply it to calculate the timeliness
of his petition. However, his calculation arrives at the wrong
result because it incorrectly assumes that 90 days for filing a
petition for certiorari is automatically added in every case. It is
not. Section 2244(d)(1)(A) states that the limitation period begins
on, “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review.” Here, Crockett filed a direct appeal with the Court of
Appeals of Indiana. That court affirmed his conviction on December
28, 2005. He did not petition for transfer to the Indiana Supreme
Court. The time for doing so expired 30 days later on January 27,
2006.2 That was when his judgment became final because the time for
seeking further review had expired. Therefore the 90 days for
filing a petition for certiorari with the United States Supreme
Court is not applicable to this case.
Petitioners who appeal to the Indiana Supreme Court are
afforded an additional 90 days because that is the time during
which they could file a petition for certiorari to the United

2

See Indiana Rules of Appellate Procedure 57.C. which provides that a
notice of appeal must be filed within 30 days.

3

States Supreme Court. However, because Crockett did not appeal to
the Indiana Supreme Court, he could not file a petition for
certiorari. The United States Supreme Court “can review . . . only
judgments of a ‘state court of last resort’ or of a lower state
court if the ‘state court of last resort’ has denied discretionary
review.” Gonzalez v. Thaler, 132 S. Ct. 641, 656 (2012). In
Indiana, the State court of last resort is the Indiana Supreme
Court. Because Crockett did not appeal to the Indiana Supreme
Court, his appeal ended with the Court of Appeals of Indiana, from
which he could not petition for certiorari to the United States
Supreme Court. As the United States Supreme Court explained, “We
therefore decline to incorporate the 90-day period for seeking
certiorari in determining when Gonzalez’s judgment became final.”
Id. The same is true for Crockett. He is not entitled to an
additional 90 days.
Thus, the limitation period began on January 28, 2006, and ran
until Crockett filed a post-conviction relief petition on May 17,
2006. While the post-conviction relief petition was pending, the
limitation period was tolled pursuant to 28 U.S.C. § 2244(d)(2).
However, before it was tolled, 109 days had elapsed and Crockett
had only 256 days remaining.3 The tolling ended on October 16,
2014, when the Indiana Supreme Court denied transfer in Crockett’s
3

When necessary, the 1-year period of limitation is counted as (and
divided into) days. See Holland v. Florida, 560 U.S. 631, 638 (2010) (“At that
point, the AEDPA federal habeas clock again began to tick – with 12 days left on
the 1-year meter.”)

4

post-conviction appeal. The 1-year period of limitation then began
again, and expired 256 days later on June 29, 2015. However,
Crockett did not sign and mail this habeas corpus petition until
nearly two months later on August 21, 2015. Therefore it is
untimely and must be dismissed. Though this might seem harsh, even
petitions that are one day late are time barred. See United States
v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) and Simms v.
Acevedo, 595 F.3d 774 (7th Cir. 2010).
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.

5

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 15, 2016

/s/RUDY LOZANO, Judge
United State District Court

6

a