HAVILAND v. CARNEYGEE
Filing
11
ENTRY Discussing Petition and Certificate of Appealability - For the reasons set forth, Haviland's Petition must be DENIED and the action DISMISSED with prejudice. In addition, the court finds that a certificate of appealability should not issue. Signed by Judge Tanya Walton Pratt on 8/22/2011.(JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DONALD J. HAVILAND,
Petitioner,
v.
DONNA CARNEYGEE,
Respondent.
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No. 1:11-cv-156-TWP-TAB
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Donald J. Haviland
(“Haviland”) 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.
Haviland is serving a 60-year sentence imposed for his 1995 Monroe County
conviction for murder. He asserts that his conviction and sentence are infirm. The
respondent asserts that Haviland’s habeas petition was not timely filed. Haviland replied
to the respondent’s argument, arguing the merits of his claims and that failure to
consider his claims would result in a fundamental miscarriage of justice.
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 revised several of
the statutes governing federal habeas relief, as part of the Anti-terrorism and Effective
Death Penalty Act of 1996,. 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. 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 (2d Cir. 2000).
C.
The facts pertinent to the computation of the statute of limitations are the
following:
!
On April 4, 1995, following a jury trial, Haviland was found guilty of
murdering his uncle. On June 16, 1995, he was sentenced to sixty years
in prison.
!
Haviland filed a notice of appeal. The Indiana Supreme Court affirmed his
conviction and sentence on March 13, 1997. His petition for rehearing was
denied on March 30, 1998.
!
On April 20, 2006, Haviland filed a petition for state post-conviction relief.
On August 6, 2007, the petition was “administratively disposed.” He filed a
second petition for post-conviction relief on February 2, 2010, which was
denied on August 23, 2010. Haviland did not appeal the denial of his
petition.
!
Haviland signed his petition for writ of habeas corpus on February 1, 2011.
D.
The legal significance of the foregoing facts is the following:
!
Haviland’s conviction became final on June 28, 1998, the date when the
time to seek certiorari review expired.
!
Haviland had until June 28, 1999, to file a habeas petition or have a
properly filed petition for post-conviction relief pending in state court.
!
Haviland did not file his petition for post-conviction relief until April 20,
2006, almost seven years after the statute of limitations had expired.
The statute of limitations established by 28 U.S.C. 2244(d) expired June 28,
1999. Thus, Haviland’s habeas petition was filed more than six years after the statute of
limitations expired. The later post-conviction litigation has no effect on the statute of
limitations computation. 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).
In his reply, Haviland states that, “[t]he very nature of the federal habeas corpus
writ, demands that it be administered with the initiative and flexibility essential to ensure
that miscarriages of justice within its reach are surfaced and corrected, and that
Preclusive doctrines like the Antiterrorism and Effective Death Penalty Act of 1996,
Pursuant to 28 U.S.C. §2244(d)(1), and all other doctrines and formalities YIELD to the
imperative of correcting a fundamentally unjust incarceration.”
This is Haviland’s
attempt to invoke the fundamental miscarriage of justice exception. However, it is
insufficient. In Schlup v. Delo, 513 U.S. 298, 327 (1995), the Supreme Court explained
that to establish a "fundamental miscarriage of justice" a petitioner must demonstrate
that "a constitutional violation has probably resulted in the conviction of one who is
actually innocent." Id. (quoting Murray v. Carrier, 477 U.S. at 496). And, in order to
establish a claim of actual innocence “he must convince the court that no reasonable
juror would have found him guilty but for the error(s) allegedly committed by the state
court.” Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir. 2004) (citing Schlup). Haviland
invokes the fundamental miscarriage of justice exception, but offers no evidence of his
actual innocence here, and the court discerns no basis on which such an argument
could be asserted. More importantly, “in this circuit, actual innocence is not a
freestanding exception to the statute of limitations in § 2244(d)(1)(A).” Aruajo v.
Chandler, 435 F.3d 678, 682 (7th Cir. 2005).
In addition, Haviland claims that, “he has been mentally ill and incompetent
during his incarceration, until the past few years.” However, this does not restart the
statute of limitations period on Haviland’s behalf. See 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).
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,
Haviland has encountered the hurdle produced by the 1-year statute of limitations. He
has not shown the existence of circumstances permitting him to overcome these
hurdles, and hence is not entitled to the relief he seeks. His petition for a writ of habeas
corpus is therefore dismissed as untimely. 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 Haviland
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.
08/22/2011
Date: ___________________
Distribution:
Donald J Haviland
#881536
Correctional Industrial Facility
5124 W. Reformatory Road
Pendleton, IN 46064
Henry A. Flores, Jr.
INDIANA ATTORNEY GENERAL
henry.flores@atg.in.gov
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
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