WITTKAMPER v. BUSS

Filing 20

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability: His petition for a writ of habeas corpus is therefore dismissed as untimely and as barred by his unexcused procedural default. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITONAL INFORMATION***. Signed by Judge William T. Lawrence on 7/12/2011.(DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

AARON WITTKAMPER,
Petitioner,
v.
INDIANA ATTORNEY GENERAL,
Respondent.

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No. 1:10-cv-1279-WTL-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Aaron Wittkamper for a writ
of habeas corpus must be denied and the action dismissed with prejudice. In addition, the
court finds that a certificate of appealability should not issue.
I.
A.
In a proceeding docketed as No. 33A05-1002-CR-51, Wittkamper was convicted
in an Indiana state court of possession of a device by an incarcerated person. This
conviction was entered through a plea bargain between Wittkamper and the State of
Indiana relative to charges filed on July 19, 2007, of possession of a device by an
incarcerated person as a class B felony, rioting, and criminal mischief.
The plea agreement to which reference has been made provided that Wittkamper
would be sentenced to the Indiana Department of Correction for a term of three (3) years.
On June 30, 2008, the trial court accepted the plea agreement, accepted Wittkamper’s
plea, found him guilty, and sentenced Wittkamper to a term of confinement of three (3)
years. Neither the plea agreement nor the trial court’s sentencing order specified whether
the three year sentence was to be served consecutively or concurrently to Wittkamper’s
current prison sentence in the State of Arizona.
On July 28, 2008, the trial court amended the sentencing order to reflect that
Wittkamper’s 3-year sentence was to be served consecutively “to any sentence
previously imposed in the State of Arizona.”

B.
In an attempt to “curb delays, to prevent 'retrials' on federal habeas, and to give
effect to state convictions to the extent possible under law,” Congress, as part of the
Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), revised several of the
statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000).
One such revision amended 28 U.S.C. § 2244 to include a one-year statute of limitations
for state prisoners seeking federal habeas relief.
C.
The facts pertinent to the computation of the statute of limitations are the following:
●

Wittkamper was sentenced on June 30, 2008.

●
On July 28, 2008, the trial court added language to its sentencing order directing
that its sentence was to be served consecutively to any sentence previously imposed in
the State of Arizona.
●
On September 14, 2009, Wittkamper filed a motion claiming that the amended
sentencing order of a consecutive sentence was erroneous under Indiana Code §
35-38-1-15. On November 11, 2009, the trial court denied Wittkamper’s motion
●
On December 4, 2009, Wittkamper sent a “Petition for Review” to the Indiana
Court of Appeals. The Indiana Court of Appeals sent a letter to Wittkamper noting that no
Notice of Appeal had been filed and informing him that a notice is required to initiate an
appeal pursuant to Indiana Appellate Rule 9.
●
On February 17, 2010, Wittkamper filed a Notice of Appeal with the trial court. The
trial court sent Wittkamper an order denying the filing of his notice. On February 25, 2010,
Wittkamper’s trial attorney filed a motion to withdraw, which was granted that same day.
●
On March 29, 2010, Wittkamper filed a Notice of Appeal in the trial court to
challenge the amended sentencing order. On July 2, 2010, the Indiana Court of Appeals
dismissed Wittkamper’s appeal because he failed to timely file a notice of appeal.
Wittkamper sent a “petition” to the Indiana Supreme Court asking that it reverse the
Indiana Court of Appeals’ dismissal of his appeal. However, Wittkamper’s petition failed
to comport with the filing requirements provided in the Indiana Appellate Rules and
therefore was never deemed filed by the Indiana appellate courts.
●
On October 12, 2010, Wittkamper filed a petition for a writ of habeas corpus with
this court, which was signed on October 7, 2010.
D.
The legal significance of the foregoing facts is the following:

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Wittkamper’s conviction was “final” for purposes of the AEDPA not later than
August 29, 2008, because this was the last date on which Wittkamper could have filed a
timely direct appeal from the amended sentencing order issued by the trial court on July
28, 2008. See Griffith v. Kentucky, 479 U.S. 314, 321 & n.6 (1987) (a conviction is “final”
when the time for seeking direct review from the judgment affirming the conviction has
expired); Powell v. Davis, 415 F.3d 722, 726 (7th Cir. 2005).
●
The statute of limitations established by 28 U.S.C. 2244(d) began to run on August
30, 2008, and expired one year later on August 31, 2009.
●
Wittkamper’s first challenge to the amended sentencing order was filed on
September 14, 2009. By that time, the statute of limitations had expired. Accordingly,
Wittkamper’s challenge and his subsequent litigation in the Indiana state courts could not
have tolled the statute of limitations period. Teas v. Endicott, 494 F.3d 580 (7th Cir. 2007)
(the fact that the state courts entertained a collateral attack on prisoner's conviction more
than one year after the expiration of the one year time limit does not "re-start" the statute
of limitations under § 2244(d)); Fernandez v. Sternes, 227 F.3d 977, 978-79 (7th Cir.
2000) (explaining that it is illogical to toll a limitations period that has already passed).
●
Wittkamper asserts that he is unlearned in the law, but his ignorance is not a
sufficient basis on which to toll the running of the statute of limitations. Fisher v. Johnson,
174 F.3d 710, 714 (5th Cir. 1999) ("ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing"); Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998) (equitable tolling not justified by fact that petitioner simply did not know
about AEDPA time limitation). To the extent that Wittkamper argues for a subjective
standard in § 2244(d)(1), that is, the year to file a federal petition begins when a prisoner
actually understands what legal theories are available, the Seventh Circuit has rejected
this suggestion. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (under §
2244(d)(1)(D), “[t]ime begins when the prisoner knows (or through diligence could
discover) the important facts, not when the prisoner recognizes their legal significance. If
§ 2244(d)(1) used a subjective rather than an objective standard, then there would be no
effective time limit, as [petitioner's] case illustrates.”).
The statute of limitations applicable to federal habeas corpus actions "was Congress'
primary vehicle for streamlining the habeas review process and lending finality to state
convictions." Walker v. Artuz, 208 F.3d 357, 361 (2nd Cir. 2000). Wittkamper’s petition for
a writ of habeas corpus was filed after the statute of limitations had expired and his
attempt to show otherwise is unpersuasive.
E.
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before
his claim is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S.
1, 14 (1992) (O'Connor, J., dissenting) (internal citations omitted). In this case,
Wittkamper has encountered the hurdle produced by the 1-year statute of limitations. He
has not shown the existence of circumstances permitting him to overcome this hurdle,
and hence is not entitled to the relief he seeks. Additionally, Wittkamper has committed

unexcused procedural default by failing to properly present his habeas claim to the
Indiana state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999) (the
federal habeas statute requires a petitioner “[to] give the state courts one full opportunity
to resolve constitutional issues by invoking one complete round of the State's established
appellate review process”; this includes filing an application for discretionary appellate
review with the State's highest court if that right is available by statute); Henderson v.
Cohn, 919 F.2d 1270, 1272 (7th Cir. 1990) (holding that illiteracy is not cause to
overcome procedural default, citing with approval cases holding that ignorance of the law
is not cause); Rodriguez v. Maynard, 948 F.2d 648 (9th Cir. 1991) (pro se status and lack
of awareness and training in the law is not cause). His petition for a writ of habeas corpus
is therefore dismissed as untimely and as barred by his unexcused procedural default.
Judgment consistent with this Entry shall now issue.
II.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the court finds that Wittkamper
has failed to show that reasonable jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional right” and “debatable whether [this
court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court therefore denies a certificate of appealability.
IT IS SO ORDERED.

07/12/2011
Date: __________________

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana