Dunn v. Warden

Filing 2

OPINION AND ORDER: Dewayne A. Dunn's habeas corpus petition ECF 1 is DENIED pursuant to Rule 4 of the Rules Governing Section 2254 Cases and the petitioner is DENIED a certificate of appealability. Signed by Judge Philip P Simon on 3/20/18. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEWAYNE A. DUNN,
Petitioner,
v.

CAUSE NO.: 3:18CV178-PPS/MGG

WARDEN,
Respondent.
OPINION AND ORDER
Dewayne A. Dunn, a prisoner without a lawyer, filed a habeas corpus petition
attempting to challenge his conviction and sentence for murder imposed by the Elkhart
Circuit Court on March 17, 2011. (ECF 1.) However, habeas corpus petitions are subject
to a strict one year statute of limitations. There are four possible dates from which the
limitation period begins to run.
(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.
28 U.S.C. § 2244(d).
Question 9 of the form habeas petition asked Dunn to explain why this petition is
timely. In response, he wrote, “I have filed in a timely manner, and the one year period
has been meet [sic].” (ECF 1 at 5.) Neither this answer nor the claims raised in the
petition indicate that they are based on newly discovered evidence or a newly
recognized constitutional right. Neither is there any indication that a state-created
impediment prevented him from filing his federal petition on time. 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.
Here, Dunn was found guilty and sentenced on March 17, 2011. (ECF 1 at 1.) He
filed a direct appeal, and the Indiana Court of Appeals affirmed his conviction on
December 22, 2011. Id. He filed a petition to transfer with the Indiana Supreme Court,
but it was denied on February 13, 2012.1 Dunn v. State of Indiana, No. 20A05-1103-CR-

Dunn reports that his petition for transfer was resolved a few days later, on February 24, 2012.
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(ECF 1 at 1.) This is inaccurate, but for the reasons explained in this order it would not change the
outcome here.

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00160, order denying petition to transfer (Ind. Ct. App. Feb. 13, 2012). Dunn 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 May 14,
2012. See Sup. Ct. R. 13(1) and Gonzalez v. Thaler, 565 U.S. 134, 150 (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 May 14,
2013. Because this petition was not filed until March 12, 2018, it is nearly five years late.
Dunn filed a state post-conviction relief petition on January 19, 2017, but by the
time he filed that petition, his time to seek habeas relief in federal court had already
lapsed. Once the deadline expires, filing a post-conviction relief petition does not
"restart" the federal clock, or "open a new window for federal collateral review." De
Jesus v. Acevedo , 567 F.3d 941, 943 (7th Cir. 2009). As a result, this petition is untimely.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court must
either issue or deny a certificate of appealability in all cases where it enters a final order
adverse to the petitioner. To obtain a certificate of appealability, the petitioner must
make a substantial showing of the denial of a constitutional right by establishing “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quote marks and citation omitted). As explained, the petition was
not timely filed. Nothing before the court suggests that jurists of reason could debate
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the correctness of this procedural ruling or find a reason to encourage this case to
proceed further. Accordingly, the court declines to issue a certificate of appealability.
ACCORDINGLY:
Dewayne A. Dunn’s habeas corpus petition (ECF 1) is DENIED pursuant to Rule
4 of the Rules Governing Section 2254 Cases, and the petitioner is DENIED a certificate
of appealability.
SO ORDERED on March 20, 2018.
/s/ Philip P. Simon
JUDGE
UNITED STATES DISTRICT COURT

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