RUST v. LEVENHAGEN et al
Filing
14
ENTRY Discussing Petition - Rust's petition for a writ of habeas corpus [Dkt. 1] shows on its face that he is not entitled to the relief he seeks. The petition is therefore DENIED. Judgment consistent with this Entry shall now issue. The court DENIES a certificate of appealability. Signed by Judge Jane Magnus-Stinson on 6/10/2013. (copy to Petitioner via US Mail) (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICKY L. RUST,
Petitioner,
v.
MARK LEVENHAGEN,
Respondent.
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Case No. 1:13-cv-419-JMS-TAB
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Ricky L. Rust 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 a Writ of Habeas Corpus
I.
Rust was convicted in 2009 in an Indiana state court of battery, criminal recklessness and
criminal confinement. Rust now seeks a writ of habeas corpus, contending that his convictions
are constitutionally infirm. The habeas petition is before the court for its preliminary review
pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States
District Courts. Rule 4 provides that if it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge
shall make an order for its summary dismissal and cause the petitioner to be notified." See Small
v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
II.
A.
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, revised several of the statutes governing federal habeas
relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). One such provision provides that
a state prisoner has one year to file a federal petition for habeas corpus relief,
starting 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). . . . “The one-year clock is stopped, however, during the time the
petitioner's ‘properly filed’ application for state postconviction relief ‘is
pending.’” Day [v. McDonough, 547 U.S. 198, 201 (2006)] (quoting 28 U.S.C. §
2244(d)(2)).
Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012)(footnote omitted). 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). A conviction is “final” when the time for seeking direct
review from the judgment affirming the conviction has expired. Griffith v. Kentucky, 479 U.S.
314, 321 & n.6 (1987).
B.
Rust’s direct appeal was decided on May 26, 2010. Rust v. State, 927 N.E.2d 430
(Ind.App. 2010). His request for transfer to the Indiana Supreme Court was denied on September
16, 2010. The time within which he could have filed a petition for a writ of certiorari expired 90
days later, on December 18, 2010. That was the date his conviction was “final” for federal
habeas corpus purposes. He therefore had through December 18, 2011, in which to file his
federal habeas petition. See Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000).1
The habeas petition, however, was not filed with the clerk until December 26, 2012. The
habeas petition arrived in an envelope postmarked December 20, 2012. Because the habeas
petition itself is not dated, it can be considered as have been filed on December 20, 2012. Even
so, however, it was filed just over one (1) year after the statute of limitations expired.
C.
District courts are permitted to consider, sua sponte, the timeliness of a prisoner's habeas
petition, but must afford the parties notice and an opportunity to be heard before acting on their
own initiative to dismiss a petition as untimely. See Day v. McDonough, 547 U.S. 198 (2006);
U.S. v. Bendolph, 409 F.3d 155 (3d Cir. 2005). Rust was afforded that opportunity and responded
in his filing of May 20, 2013.
D.
“[T]he timeliness provision in the federal habeas corpus statute is subject to equitable
tolling.” Holland v. Florida, 130 S. Ct. 2549, 2554 (2010). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
“There are no bright lines in determining whether equitable tolling is warranted in a given
case.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). In Holland, the Supreme Court
emphasized that in considering whether there could be equitable tolling, courts should favor
flexibility over adherence to mechanical rules. 130 S. Ct. at 2563. In this regard, “the particular
1
A prior habeas action was filed on September 7, 2010, docketed as No. 1:10-cv-1128-TWP-DML, but
exactly one month later was dismissed without prejudice as premature and has no bearing on the present
case.
circumstances of each petitioner must be taken into account,” Pabon, 654 F.3d at 399, and each
decision made on a “case-by-case basis.” Holland, 130 S. Ct. at 2563 (quoting Baggett v. Bullitt,
377 U.S. 360, 375 (1964)).
Rust invokes the doctrine of equitable tolling without specifically using that term. He
does so based on generalized statement that for a substantial period of time he has not been able
to physically access the prison law library in a meaningful fashion. This is not sufficient,
however, because difficulty obtaining legal materials does not constitute an extraordinary
circumstance which justifies the application of equitable tolling. See Jones v. Hulick, 449 F.3d
784, 789 (7th Cir. 2006) (petitioner's placement in segregation, during which time he had no
access to the law library; limited law library access at other times; and delays in receiving mail
were insufficient to justify equitable tolling).
III.
Rust has encountered the hurdle produced by the 1-year statute of limitations after the
effective date of the AEDPA. He has not shown the existence of circumstances permitting him
to overcome this hurdle. His petition for a writ of habeas corpus [Dkt. 1] shows on its face that
he is not entitled to the relief he seeks. The petition is therefore 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 Rust has failed to
show that reasonable jurists would find it “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.
06/10/2013
Date: _________________________
Distribution:
Ricky L. Rust
910027
Westville Correctional Center
Inmate Mail/Parcels
5501 South 1100 West
Westville, IN 46391
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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