Ward v. Superintendent

Filing 7

OPINION AND ORDER: VACATES the dismissal order (DE # 4 ) and judgment (DE # 5 ); 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 Senior Judge James T Moody on 1/18/2017. (lhc)(cc: Ward)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JERRY L. WARD,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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No. 3:16 CV 758

OPINION AND ORDER
This case is closed. It was dismissed without prejudice after the deadline for filing
an amended habeas corpus petition expired. (DE # 4.) However, the court has now
received an amended petition from Jerry L. Ward, a pro se prisoner. (DE # 6.) Delivery
was delayed because Ward sent it in the mail – rather than filing it electronically from the
Westville Correctional Facility law library. Had he done so, the court would have
received it well before the deadline, rather than well after it. Nevertheless, because it was
mailed before the deadline, the court will vacate the dismissal order and review the
amended petition. See Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001).
Ward pleaded guilty and was given an 8 year sentence on December 8, 2011, by
the Cass County Circuit Court under cause number 09C01-1006-FC-12. He is raising only
one ground in this habeas corpus petition. He argues that he was illegally required to
serve 2 years on parole. His parole began on February 25, 2014. He argues that his parole
should have ended on February 25, 2015.

Habeas corpus petitions are subject to a strict one year statute of limitations.
Without resolving precisely when the limitation period should begin in this case, it is
clear that this petition is untimely under even the most generous possibility.
(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).
In response to question 16 asking him to explain why the petition is timely (which
includes the text of the statute quoted above), Ward wrote, “I was sentenced on
12/08/2011, and I served almost 4 years before I was rolled over onto my new sentence,
and then released to parole thereafter. I was just recently made aware of the rules of
parole that show I was illegally placed on parole due to serving out my first sentence then
serving a new sentence, then being placed on parole for the first sentence.” (DE # 6 at 5.)
Neither that response – nor anything else in the petition – indicates that this claim is based
on a newly recognized Constitutional right or that a state-created impediment prevented
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him from filing this petition sooner. Therefore 28 U.S.C. § 2244(d)(1)(B) and (C) are not
applicable to this case. That leaves 28 U.S.C. § 2244(d)(1)(A) and (D).
If 28 U.S.C. § 2244(d)(1)(A) applies, then 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, Ward was sentenced on December 8,
2011. He did not file a direct appeal and the deadline for doing so expired on January 9,
2012. See Indiana Rules of Appellate Procedure 9.A.(1) and 25.A. The 1-year period of
limitation would have expired on January 9, 2013.
If 28 U.S.C. § 2244(d)(1)(D) applies, then the 1-year period of limitation began on
“the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” It is unclear when Ward actually found
out that he was being required to serve a second year on parole, but 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). Here, it is clear
that – at the absolute latest – Ward could have found out by the time the second year
began on February 25, 2015. If so, the 1-year period of limitation would have expired no
later than February 25, 2016. Because he did not sign his original habeas corpus petition
(DE # 1 at 10) until November 2, 2016, this petition is untimely and must be dismissed.
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
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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 these reasons, the court:
(1) VACATES the dismissal order (DE # 4) and judgment (DE # 5);
(2) DISMISSES the petition pursuant to Habeas Corpus Rule 4 because it is
untimely;
(3) DENIES a certificate of appealability;
(4) 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
(5) DIRECTS the clerk to close this case.
SO ORDERED.
Date: January 18, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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