Chenoweth v. Neal

Filing 2

OPINION AND ORDER DISMISSING the petition (DE #1) pursuant to Habeas Corpus Rule 4 because it is untimely; DENIES a certificate of appealability; and DIRECTS the Clerk to close this case. Signed by Senior Judge James T Moody on 10/18/16. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMES K CHENOWETH,

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Petitioner,
v.

SUPERINTENDENT,

No. 3:16 CV 673

Respondent.
OPINION and ORDER
James K. Chenoweth, by counsel, filed a habeas corpus petition attempting to
challenge his child molesting convictions and 40 year sentence by the Elkhart Superior
Court under cause number 20D03-0705-FA-28 on August 27, 2009. The court is
obligated to review the petition and dismiss it if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules
Governing Section 2254 Cases. Here, the petition must be dismissed because it is
untimely. 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 postconviction 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). Chenoweth asserts:
This petition is timely under 28 U.S.C. § 2244(d) as it was filed less than
one year from the exhaustion of appeals of Mr. Chenoweth’s petition for
post-conviction relief. Rehearing by the Court of Appeals occurred on
September 10, 2015, the Indiana Supreme Court denied transfer on
December 3, 2015, and the U.S. Supreme Court denied certiorari on May
31, 2016. All of these denials have occurred within one year of the filing of
this petition.
(DE # 1 at 6.) Neither that response, nor anything else in the petition indicates that his
grounds are based on a newly recognized Constitutional right or newly discovered
evidence. Neither has he indicated that a state-created impediment prevented him from
filing this petition sooner. 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.
The Indiana Supreme Court denied transfer in Chenoweth’s direct appeal on
October 20, 2010.1 He did not file a petition for certiorari to the United States Supreme
Court. Nevertheless, he had 90 days to do so and his conviction did not become final
until that time expired on January 18, 2011. See Sup. Ct. R. 13(1) and Gonzalez v. Thaler,

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The petition states that transfer was denied on October 10, 2010, but in Chenoweth v. State, 940 N.E.2d
827 (Ind. 2010), transfer was denied on October 20, 2010.

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132 S. Ct. 641, 653-54 (2012) (“[T]he judgment becomes final . . .when the time for
pursuing direct review . . . expires.”). The next day, the 1-year period of limitation
began. It expired a year later on January 18, 2012. Because this petition was not filed
until October 5, 2016, it is nearly five years late.
Chenoweth filed a post-conviction relief petition on August 5, 2013. Had he filed
it on or before January 18, 2012, 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 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). Because
the petition is untimely, it must be dismissed. Though this might seem harsh, even
petitions that are one day late are time barred.
Foreclosing litigants from bringing their claim because they missed the
filing deadline by one day may seem harsh, but courts have to draw lines
somewhere, statutes of limitation protect important social interests, and
limitation periods work both ways – you can be sure [the petitioner]
would not be pooh-poohing the prosecution’s tardiness if [he] had been
indicted one day after the statute of limitations expired for [his] crimes.
United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citation omitted). See also
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 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

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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:
(1) DISMISSES the petition (DE # 1) pursuant to Habeas Corpus Rule 4 because
it is untimely;
(2) DENIES a certificate of appealability; and
(3) DIRECTS the clerk to close this case.
SO ORDERED.
Date: October 18, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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