FITCH v. BUTTS

Filing 24

Entry Discussing Petition for Writ of Habeas Corpus - The petition of Corey Fitch ("Fitch") 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. Signed by Judge Tanya Walton Pratt on 6/20/2012. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
COREY FITCH,
Petitioner,

vs.
KEITH BUTTS,

Respondent.

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1:11-cv-00862-TWP-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Corey Fitch ("Fitch”)
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.
The Petition for Writ of Habeas Corpus
“We live in a world of deadlines.” Spears v. City of Indianapolis, 74 F.3d 153,
157 (7th Cir. 1996). As the pleadings and the expanded record show, Fitch has
missed the deadline for seeking the relief which he seeks.
In an attempt to Acurb 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, 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. 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). Under ' 2244(d)(1) of
the AEDPA, the statute of limitations for ' 2254 petitions is one year. See 28 U.S.C.
' 2244(d)(1)(A)-(D).
Subject to exceptions not applicable here, the statute of limitations begins to
run from "the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review." 28 U.S.C. §
2244(d)(1)(A).
Fitch was convicted of a drug offense in 2006 in an Indiana state court. In the
direct appeal, the Court of Appeals rejected some of Fitch’s claim but found that one
issue required a remand to the trial court. Fitch v. State, No. 45A03-0608-CR-373
(Ind.Ct.App. Aug. 21, 2007). Fitch sought review by the Indiana Supreme Court,
which denied transfer on October 4, 2007. Fitch’s conviction became final 90 days
later, on January 2, 2008, when time to seek certiorari expired. 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).
The statute of limitations ran for 100 days before Fitch filed a petition for
post-conviction relief on April 11, 2008. On March 10, 2009, the trial court granted
Fitch’s motion to withdraw his petition for post-conviction relief. The statute of
limitation ran for an additional 193 days before Fitch filed another petition for postconviction relief on September 18, 2009. On November 23, 2010, the Indiana Court

of Appeals denied Fitch’s appeal, and on January 6, 2011, denied a petition for
rehearing.
When the Indiana Court of Appeals denied Fitch’s petition for rehearing on
January 6, 2011, there were 70 days left in the 1-year statute of limitations. This
period expired on March 17, 2011.1 This was more than two (2) months before Fitch
signed the habeas petition in the present action.
Fitch argues that his claims warrant the relief he seeks, but he has not
addressed the statute of limitations argument presented by the respondent.
A[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, Weddington has encountered the hurdles produced by the 1-year statute of
limitations and by procedural default. 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 denied. Judgment
consistent with this Entry shall now issue.
Certificate of Appealability
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
Fitch has failed to show that reasonable jurists would find it Adebatable whether

On January 28, 2011, Fitch filed a petition for permission to seek successive post-conviction review,
which was denied by the Indiana Court of Appeals. The petition, since unsuccessful, failed to toll the
statute of limitations. See Tinker v. Hanks, 172 F.2d 990 (7th Cir. 1999) (efforts to file a successive
action for post-conviction relief, if unsuccessful, do not toll the running of the statute of limitations).
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[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.

06/20/2012
Date: _________________

Distribution:
Corey Fitch
#170539
Westville Correctional Facility
5501 South 1100 West
Westville, IN 46391
All Electronically Registered Counsel

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana