Hall v. Superintendent

Filing 5

OPINION AND ORDER: The Court DISMISSES this case pursuant to Section 2254 Habeas Corpus Rule 4 because the petition is untimely. The Court DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11 and leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Signed by Senior Judge James T Moody on 8/1/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
OSCAR HALL,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:17-CV-263 JM

OPINION and ORDER
Oscar Hall, a pro se prisoner, filed an amended habeas corpus petition attempting
to challenge his conviction and 60 year sentence for murder in the Marion Superior
Court on August 24, 2011, under cause number 49G02-1104-MR-024823. (DE # 4 at 1.)
Habeas corpus petitions are subject to a strict one-year statute of limitations and Hall’s
petition is untimely.
(1) A one-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).
Nothing in his response – nor anything else in the petition – indicates that State
action impeded him from filing sooner or that his claims are based on a newly
recognized constitutional right or newly discovered facts. Thus, Sections 2244(d)(1)(B)(D) do not apply, and the one-year period of limitation began 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” pursuant to 28 U.S.C. § 2244(d)(1)(A). Hall did not file a direct
appeal in State court. (DE # 4 at 1-2.) Hall was sentenced on August 24, 2011. (DE # 4 at
1.) Under Indiana law, he had until September 26, 2011, to file his direct appeal. See
Indiana Rules of Appellate Procedure 9, 25(A). Thereafter, Hall had until September 27,
2012, to file his petition for habeas corpus in federal court. He did not do so.
Hall asserts that his petition is timely because it was filed within 30 days of the
conclusion of his State court civil counterclaim case. (DE # 4 at 10.) It is unclear if, or
how, his civil counterclaim is related to his murder conviction. However, even
assuming that it is related, by the time he filed the counterclaim in May 2016, it was
already time-barred as a challenge to his conviction.
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 (7th Cir. 2000) (citation omitted); Simms v. Acevedo,
595 F.3d 774 (7th Cir. 2010).
As a final matter, pursuant to Section 2254 Habeas Corpus Rule 11, the court
must consider whether to grant or deny a certificate of appealability. To obtain a
certificate of appealability when the court dismisses a petition on procedural grounds,
the petitioner must show that reasonable jurists would find it debatable: (1) whether the
court was correct in its procedural ruling; and (2) whether the petition states a valid
claim for denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, there is no basis for finding that jurists of reason would debate the correctness of
this procedural ruling. Therefore, there is no basis for encouraging him to proceed
further. Thus, 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.
For the foregoing reasons the court DISMISSES this case pursuant to Section
2254 Habeas Corpus Rule 4 because the petition is untimely and DENIES a certificate of
appealability pursuant to Section 2254 Habeas Corpus Rule 11 and leave to appeal in
forma pauperis pursuant to 28 U.S.C. § 1915(a)(3).
SO ORDERED.
Date: August 1, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT