Christmas v. Warden

Filing 6

OPINION AND ORDER: The court DISMISSES the habeas petition 1 because it is untimely; DENIES Alvin Christmas a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and DIRECTS the clerk to close this case. Signed by Chief Judge Jon E DeGuilio on 11/20/2020. (bas)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ALVIN CHRISTMAS,
Petitioner,
v.

CAUSE NO. 3:20-CV-587-JD-MGG

WARDEN,
Respondent.
OPINION AND ORDER
Alvin Christmas, a prisoner without a lawyer, filed a habeas corpus petition
under 28 U.S.C. § 2254 to challenge his conviction of murder and robbery under Case
No. 20C01-201-MR-7. Following a trial, on December 26, 2002, the Elkhart Circuit Court
sentenced him as a habitual offender to one hundred forty-five years of incarceration.
Christmas v. State, 2009 WL 4927874, at *2 (Ind. App. 2009). Pursuant to Section 2254
Habeas Corpus Rule 4, the court must dismiss the petition “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court.”
The statute of limitations for habeas corpus cases is set forth in 28 U.S.C. §
2244(d), which provides:
(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;

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(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.
On direct appeal, the Indiana Supreme Court denied Christmas’ petition to
transfer on February 18, 2004. Therefore, his conviction became final for purposes of 28
U.S.C. § 2244(d)(1)(A) when the time for petitioning the Supreme Court of the United
States for a writ of certiorari expired on May 18, 2004. See U.S. Sup. Ct. R. 13(1) (petition
for writs of certiorari must filed within 90 days after entry of judgment); Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009) (when a state prisoner does not petition the
Supreme Court of the United States on direct appeal, his conviction becomes final when
the time for filing a petition expires). The federal limitations period was tolled during
the pendency of post-conviction proceedings from April 26, 2004, when Christmas filed
his petition in the Elkhart Circuit Court to May 20, 2010, when the Indiana Supreme
Court denied his petition for transfer. The federal limitations period expired one year
later on May 20, 2011. Though Christmas made additional efforts to obtain post2

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conviction relief in State court thereafter, these efforts did not restart the federal
limitations period, nor did they “open a new window for federal collateral review.” De
Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009); see also Martinez v. Jones, 556 F.3d 637,
638–39 (7th Cir. 2009) (“[T]he second petition tolls the limitations period only if the state
court grants permission to file it.”). As a result, when Christmas filed this habeas
petition in July 2020, he was more than nine years too late. Therefore, the court denies
the habeas petition as untimely.
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 a petition is dismissed 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 reasonable jurists would debate the correctness of this procedural ruling.
Therefore, there is no basis for encouraging Christmas to proceed further, and a
certificate of appealability is denied.
For these reasons, the court:
(1) DISMISSES the habeas petition (ECF 1) because it is untimely;
(2) DENIES Alvin Christmas a certificate of appealability pursuant to Section
2254 Habeas Corpus Rule 11; and
(3) DIRECTS the clerk to close this case.
SO ORDERED on November 20, 2020
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/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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