Box v. Superintendent
OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner George B Box. The habeas corpus relief pursuant to Section 2254 Habeas Corpus Rule 4 is DENIED because the Petition is untimely. Petitioner DENIED a certificate of appeal ability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. §1915(a)(3). Clerk DIRECTED to close this case. Signed by Judge Jon E DeGuilio on 7/24/17. (Copy mailed to pro se party). (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GEORGE B. BOX,
CAUSE NO. 3:17-CV-356-JD-MGG
OPINION AND ORDER
George B. Box, a prisoner without a lawyer, filed a habeas corpus petition attempting to
challenge his murder conviction and 55 year sentence by the Lake Superior Court on April 30,
2007, under cause number 45G02-0408-MR-0007. ECF 1 at 1. Habeas Corpus petitions are subject
to a strict one year statute of limitations.1 There are four possible dates from which the limitation
period can begin to run. Nothing in Box’ petition indicates that State action impeded him from
filing a habeas corpus petition sooner or that his claims are based on a newly recognized
The statute of limitations for habeas corpus cases is set out in 28 U.S.C. § 2244(d) which provides that:
(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.
constitutional right or newly discovered facts. Therefore 28 U.S.C. § 2244(d)(1)(B), (C), and (D)
are not applicable here. Thus the limitation period began to run pursuant to 28 U.S.C. §
2244(d)(1)(A) when the conviction became final upon the expiration of time to pursue direct
Here, Box took a direct appeal to the Court of Appeals of Indiana, which affirmed his
conviction on May 21, 2008. ECF 1 at 1. He did not petition for transfer to the Indiana Supreme
Court and his time to do so expired June 20, 2008. See Ind. R. App. P. 57(C). His limitation period
to file in federal court began to run on June 21, 2008, but was tolled 89 days later, upon his filing
of a post-conviction relief petition in State court on September 19, 2008.1 ECF 1 at 2. He pursued
his post-conviction relief petition all the way to the Indiana Supreme Court, which denied his
petition to transfer on May 28, 2010. Id. The limitations period to file in federal court began to run
again on May 29, 2010 and expired on March 1, 2011. However, Box did not sign his original
habeas corpus petition until May 3, 2017. ECF 1 at 14. Thus, it was more than six years late.
In response to question 9 (which asked him to explain why the petition is timely), Box
argues that his habeas petition is timely because his “successive post-conviction petition has been
denied as of 04/28/2017 and [he] would like to proceed [to] habeas corpus.” ECF 1 at 14.
However, once the limitations period expired, filing another 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). Moreover, an unauthorized successive postconviction petition would not have tolled the 1-year period of limitations even if it had been filed
before the deadline expired. See Powell v. Davis, 415 F.3d 722, 726-27 (7th Cir. 2005) (“Because
1 When necessary, the 1-year period of limitation is counted as (and divided into) days. See 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
an unauthorized successive petition is not considered ‘properly filed’ under Indiana law, the oneyear limit was not extended under § 2244(d)(2)” while the petitioner’s request to pursue a
successive petition was pending.).
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 petitioner 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 DENIES habeas corpus relief pursuant to Section 2254
Habeas Corpus Rule 4 because the petition is untimely, DENIES a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11, and DENIES leave to appeal in forma pauperis
pursuant to 28 U.S.C. § 1915(a)(3). The clerk is DIRECTED to close this case.
ENTERED: July 24, 2017
/s/ JON E. DEGUILIO
United States District Judge
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