Sledge v. Warden

Filing 2

OPINION AND ORDER: The Court DISMISSES the petition (DE 1) pursuant to Rule 4 of the Rules governing Section 2254 cases; and DENIES the petitioner a certificate of appealability. Signed by Judge Robert L Miller, Jr on 3/26/18. (Copy mailed to pro se party)(ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAREY SLEDGE,

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Petitioner,
v.
WARDEN,
Respondent.

Case No. 3:18-CV-190-RLM-MGG

OPINION AND ORDER
Karey Sledge, prisoner representing himself, filed a habeas petition
pursuant to 28 U.S.C. § 2254 challenging a state conviction. The court is obligated
to review the petition and dismiss it if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief[.]” RULE 4 OF THE RULES
GOVERNING SECTION 2254 CASES.
According to the petition, Mr. Sledge was found guilty of murder in Marion
Superior Court. On September 20, 2006, he was sentenced to 55 years in prison.
He filed a direct appeal of his conviction, and the Indiana Supreme Court affirmed
his conviction on January 24, 2008. He didn’t file a petition for certiorari to the
United States Supreme Court. In 2014, Mr. Sledge began state post-conviction
proceedings, which have now concluded.
On March 12, 2018, Mr. Sledge tendered his federal petition for filing. He
raises two claims: that he was denied due process when the jury relied upon only

circumstantial evidence and also when the trial judge refused to allow the reply
of the testimony.
The provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs Mr. Sledge’s petition. See Lindh v. Murphy, 521 U.S. 320, 336
(1997). Under AEDPA, habeas corpus petitions are subject to a strict one-year
statute of limitations, set forth as follows:
(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).

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Mr. Sledge’s claims don’t implicate a newly recognized constitutional right
or newly discovered facts, and he doesn’t claim that a state-created impediment
prevented him from filing on time. Mr. Sledge pursued a direct appeal and the
Indiana Supreme Court affirmed his conviction on January 24, 2008. Under §
2244(d)(1)(A), the judgment became final upon the expiration of the time for
seeking direct review when the deadline for filing a petition for certiorari with the
United States Supreme Court expired on April 23, 2008. See Sup. Ct. R. 13(1) and
Gonzalez v. Thaler, 132 S. Ct. 641, 653-54; 181 L. Ed. 2d 619, 636 (2012). (“[T]he
judgment becomes final . . .when the time for pursuing direct review . . . expires.”).
The next day, on April 24, 2008, the one-year limitation period began. It expired
a year later on April 24, 2009. Mr. Sledge filed a post-conviction relief petition in
November 2014. He provides no explanation for the 5 ½ -year gap between the
date his conviction became final and the date he filed his state post-conviction
petition. Had he filed that petition on or before April 24, 2009, it would have tolled
the one-year period of limitation. See 28 U.S.C. § 2244(d)(2). But once the deadline
expired, filing the 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). Therefore, his petition is untimely and must
be dismissed.
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

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a final order adverse to the petitioner. To obtain a certificate of appealability under
28 U.S.C. § 2253(c), the petitioner must show “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). Mr. Sledge’s petition was late
by several years. Nothing before the court suggests that jurists of reason could
debate the correctness of this ruling or find a reason to encourage Mr. Sledge to
proceed further. Accordingly, the court declines to issue Mr. Sledge a certificate
of appealability.
For these reasons, the court:
(1) DISMISSES the petition (ECF 1) pursuant to RULE 4 OF THE RULES
GOVERNING SECTION 2254 CASES; and
(2) DENIES the petitioner a certificate of appealability.
SO ORDERED on March 26, 2018
/s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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