Southwood v. Superintendent
Filing
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OPINION AND ORDER: Court DISMISSES the petition pursuant to Habeas Corpus Rule 4 because it is untimely; DENIES a certificate of appealability; DENIES leave to proceed on appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3) because an appeal in this case could not be taken in good faith; and DIRECTS the clerk to close this case. Signed by Judge Rudy Lozano on 1/30/2017. cc: Southwood(tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
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TERRY SOUTHWOOD,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
CAUSE NO. 3:16-CV-556
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 Terry
Southwood, a pro se prisoner, on August 22, 2016. For the reasons
set forth below, the Court: (1) DISMISSES the petition pursuant to
Habeas
Corpus
Rule
4
because
it
is
untimely;
(2)
DENIES
a
certificate of appealability; (3) DENIES leave to proceed on appeal
in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3) because an
appeal in this case could not be taken in good faith; and (4)
DIRECTS the clerk to close this case.
DISCUSSION
Southwood
is
attempting
to
challenge
his
five
child
molestation convictions and 60 year sentence imposed by the Elkhart
Superior Court on March 25, 2010, under cause number 20D03-0811FA-57. Habeas Corpus petitions are subject to a strict one year
statute of limitations.1 Question 16 asked Southwood to explain
why this petition is timely. In response, he wrote:
This petition is in accordance with the rules
and procedures as set forth above. Due to the trickery
and the general improprieties that occurred in the state
proceedings which created fundamental unfairness and
violated Petitioner’s Constitutional rights to Due
Process, Petitioner has been denied of the right to a
fair trial. The violations contained within, rise to the
level of fundamental defects, which inherently, resulted
in
a
complete
miscarriage
of
justice
and
are
inconsistent with the rudimentary demands of fair
procedure.
DE 1 at 4. Neither that response – nor anything else in the petition
–
indicates
that
this
claim
is
based
on
a
newly
recognized
Constitutional right. Therefore 28 U.S.C. § 2244(d)(1)(C) is not
applicable to this case. That means that the 1-year period of
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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.
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limitation began as specificed in either 28 U.S.C. § 2244(d)(1)(A),
(B), or (D).
It is possible that when Southwood referred to “trickery and
the general improprieties that occurred in the state proceedings,”
he was trying to argue that he was impeded from filing a timely
habeas corpus petition. “Although neither § 2244 nor this circuit
has defined what constitutes an impediment for purposes of §
2244(d)(1)(B), the plain language of the statute makes clear that
whatever constitutes an impediment must prevent a prisoner from
filing his petition.” Lloyd v. Van Natta, 296 F.3d 630, 633 (7th
Cir. 2002) (quotation marks omitted). In Lloyd, the Seventh Circuit
explained that the inability to obtain trial transcripts from the
State court did not prevent him from filing a habeas corpus
petition. Id. (“Because Mr. Lloyd was able to file his petition
without a complete copy of his trial transcript, the state’s
failure to provide a complete transcript did not prevent Mr. Lloyd
from pursuing any of his claims, and § 2244(d)(1)(B) does not apply
to this case.”). So too here. Trickery during his State court
proceedings did not physically prevent Southwood from preparing a
timely habeas petition and mailing it to this Court. Therefore 28
U.S.C. § 2244(d)(1)(B) is not applicable to this case.
It is possible that when Southwood referred to “trickery and
the general improprieties that occurred in the state proceedings,”
he was trying to argue that the factual predicate of his claims
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was concealed from him. To qualify as a claim based on newly
discovered evidence, the claim must be presented within one year
from “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)(1)(D). 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).
The only ground raised by Southwood is that his counsel was
ineffective.
[H]e, (1) failed to examine Petitioner for competency
(2) failed to adequately explain the process [i.e.
difference between taking a plea and going to trial] (3)
failed to inform petitioner that the Plea Agreement was
a contract and would be used to stop all future appeals
in order to enter him into a contract by adhesion which
would subject him to a life of imprisonment and (4)
failed to object to the court erroneously assuming
subject matter jurisdiction.
DE 1 at 3. Though Southwood may not have understood their legal
significance, all of the facts necessary for this claim were known
by him when he pleaded guilty. As the Seventh Circuit explained in
Owens:
If § 2244(d)(1) used a subjective rather than an
objective standard, then there would be no effective
time limit, as Owens’s case illustrates. Like most
members of street gangs, Owens is young, has a limited
education, and knows little about the law. If these
considerations delay the period of limitations until the
prisoner has spent a few years in the institution’s law
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library, however, then § 2244(d)(1) might as well not
exist; few prisoners are lawyers.
Owens at 359. Thus, 28 U.S.C. § 2244(d)(1)(D) is not applicable to
this case.
Accordingly, pursuant to 28 U.S.C. § 2244(d)(1)(A), the 1year 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. Southwood pleaded guilty
and did not take a direct appeal. The deadline for doing so expired
on April 26, 2010, and his conviction became final that day. See
Indiana Rules of Appellate Procedure 9.A.(1) and 25.A. One year
later, the deadline for filing a habeas corpus petition expired on
April 26, 2011. Because this habeas corpus petition was not signed
until August 9, 2016, it is more than 5 years late.
Southwood
filed
a
post-conviction
relief
petition
on
September 20, 2011. Had he filed it on or before April 26, 2011,
it would have tolled the 1-year period of limitation. See 28 U.S.C.
§ 2244(d)(2). However, once the deadline expired, filing the postconviction 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). Because this
habeas corpus petition is untimely, it 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
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(7th Cir. 2000) (citation omitted) and Simms v. Acevedo, 595 F.3d
774 (7th Cir. 2010).
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,
the
Court
must
consider
whether
to
grant
a
certificate
of
appealability. When a 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 the
same reasons, he may not appeal in forma pauperis because an appeal
could not be taken in good faith.
CONCLUSION
For the reasons set forth above, the Court: (1) DISMISSES the
petition pursuant to Habeas Corpus Rule 4 because it is untimely;
(2) DENIES a certificate of appealability; (3) DENIES leave to
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proceed on appeal in forma pauperis pursuant to 28 U.S.C. §
1915(a)(3) because an appeal in this case could not be taken in
good faith; and (4) DIRECTS the clerk to close this case.
DATED: January 30, 2017
/s/RUDY LOZANO, Judge
United States District Court
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