Page v. Superintendent

Filing 7

OPINION AND ORDER: The 6 petition is DENIED pursuant to Rule 4 of the Rules Governing Section 2254 Cases, and the petitioner is DENIED a certificate of appealability. Signed by Senior Judge James T Moody on 1/4/2017. cc: Page (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MATTHEW A. PAGE,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

)
)
)
)
)
)
)
)
)

No. 3:16 CV 649

OPINION AND ORDER
Matthew A. Page, a pro se prisoner, filed a habeas corpus petition attempting to
challenge his conviction and sentence by the Huntington Superior Court on June 24,
2014. (DE # 6.) However, habeas corpus petitions are subject to a strict one-year statute
of limitations. 28 U.S.C. § 2244(d). There are four possible dates from which the
limitation period begins to run:
(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).
In question 9 of the AO-241 form, Page was asked to explain why this petition is
timely. (DE # 6 at 6.) In response, he wrote:
Because this case was initiated prior to September 22, 2016 and the
decision to deny my post-conviction was on 9-22-2015 within one year.
(Id.) 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. Nor is
there any indication that a state-created impediment prevented him from filing his
federal petition on time. Accordingly, and contrary to Page’s belief, 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.
Here, Page plead guilty and was sentenced on June 24, 2014. (DE # 6 at 1.) He did
not file a direct appeal. Id. The deadline for doing so expired on July 24, 2014. See Ind. R.
App. P. 9.A.(1), 25.A. Therefore the 1-year period of limitation began on July 24, 2014,
and continued to run until Page filed a post-conviction relief petition on April 14, 2015.
(DE # 6 at 2.) Doing so tolled the 1-year period of limitation. But by then, 264 days had

2

elapsed and Page only had 101 days remaining.1 The tolling ended when he dismissed
his post-conviction relief petition on September 22, 2015. (DE # 6 at 2.) Therefore the 1year period of limitation began again on September 23, 2015, and expired on January 4,
2016.2 Because his original habeas corpus petition was not signed until more than eight
months later, on September 19, 2016, it is untimely.
Additionally, even if the petition were timely, Page has not exhausted this claims
in the state courts. To exhaust a claim, “the petitioner must raise the issue at each and
every level in the state court system, including levels at which review is discretionary
rather than mandatory.” Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004). Here,
he has not presented any of his claims to the Indiana Supreme Court. Therefore his
claims are unexhausted.
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, 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,

1

When necessary, the 1-year period of limitation is counted as (and divided into) days. See, e.g.,
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.”)
2

The 101st day was on January 2, 2016, but because that was a Saturday, the deadline did not
expire until the following Monday. See Federal Rule of Civil Procedure 6(a)(3)(A).

3

484 (2000) (internal quote marks and citation omitted). As explained, the petition was
not timely filed. Furthermore, the claims therein are unexhausted. Nothing before the
court suggests that jurists of reason could debate the correctness of this procedural
ruling or find a reason to encourage this case to proceed further. Accordingly, the court
declines to issue a certificate of appealability.
For the foregoing reasons, the petition (DE # 6) is DENIED pursuant to Rule 4 of
the Rules Governing Section 2254 Cases, and the petitioner is DENIED a certificate of
appealability.
SO ORDERED.
Date: January 4, 2017
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

4