Wine v. Superintendent

Filing 5

OPINION AND ORDER DISMISSING 1 Petition for Writ of Habeas Corpus 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)., ***Civil Case Terminated. Signed by Judge Philip P Simon on 6/20/17. (Copy mailed to pro se party)(mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BOBBY DEAN WINE,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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) CAUSE NO. 3:17-CV-265-PPS-MGG
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OPINION AND ORDER
Bobby Dean Wine, a pro se prisoner, filed a habeas corpus petition attempting to
challenge his conviction and 18 year sentence for Dealing a Controlled Substance by the
Wabash Circuit Court on July 1, 2013. [DE 1.] He acknowledges that the petition is
untimely, but argues that I should consider his claims because not doing so would be a
fundamental miscarriage of justice.
“To invoke the miscarriage of justice exception to AEDPA’s statute of limitations
. . . a petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence. Unexplained delay in presenting
new evidence bears on the determination whether the petitioner has made the requisite
showing.” McQuiggin v. Perkins, 569 U.S. __; 133 S. Ct. 1924, 1935 (2013) (internal
quotation marks and citation omitted). A petitioner who asserts actual innocence “must
demonstrate innocence; the burden is his, not the state’s.” Buie v. McAdory, 341 F.3d 623,
626-27 (7th Cir. 2003) (emphasis in original). Furthermore, “[a]ctual innocence means
“factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,

623 (1998). To support a claim of actual innocence, the petitioner must come forward
with “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial,”Schlup v. Delo, 513 U.S. 298, 324 (1995), and must show that “in light of new
evidence, it is more likely than not that no reasonable juror would find him guilty
beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537 (2006). Because of the
difficulty of meeting this standard, such claims are “rarely successful.” Schlup, 513 U.S.
at 324.
Though Wine asserts the miscarriage of justice exception, he does not have any
new evidence and he does not argue that he is actually innocent. Instead, he asserts a
number of claims related to how his trial was conducted and the alleged ineffectiveness
of his lawyers. He claims his trial counsel was ineffective for not filing a motion to
dismiss, for not allowing him to testify, and for not asking for a competency hearing.
[DE 1 at 3.] He claims that his appellate counsel was ineffective for not arguing that his
trial counsel was ineffective. [Id.] This particular claim of ineffective assistance is
particularly curious since the first issue presented on appeal was “Did Wine receive
ineffective assistance of trial counsel?” Wine v. State, 9 N.E.3d 771, *1 (Ind. Ct. App.
2014). Wine also argues that the trial judge prevented him from testifying, did not
order a competency hearing, ruled against his defense strategy, and denied him an
impartial jury. [Id. at 4.] He argues that he was denied a fair trial. [Id.] None of these
arguments are based on new evidence. Nor do any of them demonstrate that Wine
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actually is innocent. This is unsurprising since, at the trial, Wine confessed when he
told the judge “I'm not saying I’m innocent, by all means I’m not, I’m guilty as hell . . .
God knows it, you know it, he knows it.” Wine v. State, 9 N.E.3d 771, *4 (Ind. Ct. App.
2014).
In addition, Wine argues that the Court should consider his claims because the 1year period of limitation should be equitably tolled. “[A] petitioner is entitled to
equitable tolling if he shows (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631 (2010) (internal quotation marks and citation omitted).
Equitable tolling is an extraordinary remedy that is rarely granted. Obriecht v. Foster,
727 F.3d 744, 748 (7th Cir. 2013). “Petitioners bear the burden of proving that they
qualify for equitable tolling.” Taylor v. Michael, 724 F.3d 806, 810 (7th Cir. 2013).
Though Wine asserts equitable tolling, he has not shown that he was diligently
pursuing his rights or that anything (extraordinary or otherwise) prevented him from
submitting a timely habeas corpus petition. After the Court of Appeals of Indiana
denied his direct appeal on March 27, 2014, he did not seek transfer to the Indiana
Supreme Court. Though he promptly filed a post-conviction relief petition on June 11,
2014, he did not appeal when it was denied on October 27, 2014. Then, after the
deadline for filing a timely habeas corpus petition expired in late 2015, he waited a year
more before he asked to file a successive post-conviction relief petition. Though it is fair
to say that he has been diligently pursuing his claims since then, his efforts did not
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begin until it was way too late. As previously noted, his claims are not based on new
information and he has not pointed to anything that prevented him from being able to
have filed a timely petition. His “lack of action does not show reasonable diligence, and
it does not show that extraordinary circumstances actually prevented [him] from
filing.” Taylor, 724 F.3d at 811. Thus, equitable tolling is not applicable and this habeas
corpus petition is untimely.
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.
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ENTERED: June 20, 2017.

s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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