MILLER v. ZATECKY

Filing 7

ORDER TO SHOW CAUSE - It appears that Miller's habeas petition was filed 70 days after the statute of limitations expired and hence was not timely filed. Miller shall have through June 28, 2013, in which to show cause why his petition for writ of habeas corpus should not be summarily dismissed as untimely pursuant to Rule 4. Signed by Judge Sarah Evans Barker on 6/17/2013. Copy Mailed.(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL MILLER,
Petitioner,
v.
DUSHAN ZATECKY,
Respondent.

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Case No. 1:13-cv-913-SEB-TAB

Order to Habeas Petitioner to Show Cause
Why Action Should not be Dismissed as Untimely
I.
A.
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).
In most instances, 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). 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). Pursuant to 28 U.S.C. ' 2244(d)(2), the running of this
one-year period is tolled while a "properly filed" application for post-conviction relief is pending
in state court. See Gray v. Briley, 305 F.3d 777, 778-79 (7th Cir. 2002).
B.
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). 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 “[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 judge
must dismiss the petition and direct the clerk to notify the petitioner." See Small v. Endicott, 998
F.2d 411, 414 (7th Cir. 1993).
II.
Michael Miller (“Miller”) was convicted in 2003 in an Indiana state court of child
molesting. Miller’s direct appeal was resolved by the Indiana state courts on June 8, 2004, and
his conviction was final on July 8, 2004, the time in which to seek transfer from the Indiana
Court of Appeals’ opinion affirming his conviction expired. Miller filed his petition for postconviction relief on May 19, 2005. Miller’s petition for post-conviction relief was denied on July
13, 2012. The Indiana Court of Appeals affirmed the denial of Miller’s petition for postconviction relief on March 26, 2013.

Miller filed a petition for writ of habeas corpus with the clerk on June 4, 2013. Miller
contends in his habeas petition that his conviction is constitutionally infirm.
III.
It appears that Miller’s habeas petition was filed 70 days after the statute of limitations
expired and hence was not timely filed. Miller shall have through June 28, 2013, in which to
show cause why his petition for writ of habeas corpus should not be summarily dismissed as
untimely pursuant to Rule 4.
IT IS SO ORDERED.
06/17/2013
Date: __________________
Distribution:
Michael Miller
No. 870857
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana