ROBEY v. ZATECKY

Filing 8

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability: For the reasons explained in this Entry, the petition of Rickey L. Robey for a writ of habeas corpus must be denied and the action dismissed with prejudice. 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 Mr. Robey 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 (see Entry for additional information). Judgment consistent with this Entry shall now issue. Copy to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 12/23/2014.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICKEY L. ROBEY,
Petitioner,
v.
DUSHAN ZATECKY,
Respondent.

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Case No. 1:14-cv-0008-JMS-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Rickey L. Robey 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.

The Petition for a Writ of Habeas Corpus
A. Discussion

Mr. Robey’s 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 shall dismiss the petition….” Id.
In 1987, Mr. Robey was convicted of Class A felony rape, Class A felony criminal deviate
conduct, and three counts of Class A felony kidnapping in Marion Superior Court. Mr. Robey was
informed in the Entry of March 4, 2014, that his petition for writ of habeas corpus challenging his
1987 conviction appeared to be barred by the one-year statute of limitations. 28 U.S.C. §
2244(d)(1), (d)(2). He was given an opportunity to show cause why the action should not be
dismissed as untimely.

The trial court sentenced Mr. Robey to an aggregate term of 100 years. Mr. Robey appealed
to the Indiana Supreme Court. The Supreme Court affirmed Mr. Robey's convictions, but it
remanded his case to the trial court “for the entry of individual, specific findings supporting the
imposition of enhanced sentences or, in the alternative, for the reduction of the sentences to the
standard sentences provided for by statute.” Robey v. State, 555 N.E.2d 145, 152 (Ind. June 12,
1990). On resentencing, the trial court imposed an aggregate term of 80 years, which was affirmed
by the Indiana Court of Appeals. Robey v. State, 737 N.E.2d 1245 (Ind. Ct. App. Nov. 9, 2000)
(unpublished). 1
Mr. Robey was informed in the Entry of March 4, 2014, that his convictions became final
prior to April 23, 1996, the effective date of the Anti-terrorism and Effective Death Penalty Act of
1996, 28 U.S.C. 2244(d)(1) (“AEDPA”). A one-year grace period applies to petitioners whose
convictions were final prior to the effective date of the AEDPA. Araujo v. Chandler, 435 NF.3d
678, 680 (7th Cir. 2005). Mr. Robey therefore had until April 24, 1997, to file his petition for a
writ of habeas corpus. Id.
Mr. Robey has responded to the order to show cause by asserting that he was unaware of
the one-year statute of limitations. He asserts that the attorney who represented him in 1987 never
informed him of the one-year limitation to proceed in federal court. This makes sense because in
1987 there was no one-year statute of limitations. The AEDPA statute of limitations was enacted
in 1996.
Mr. Robey’s contention that he was unaware of the statute of limitations, however, cannot
compel the action to move forward. Equitable tolling may, under narrow circumstances, allow a

1Mr.

Robey’s petition for post-conviction relief was filed in 2001 and denied in 2004. The Indiana
Court of Appeals affirmed. Robey v. State, 824 N.E.2d 452 (Mar. 17, 2005) (unpublished).

late petition, but it does not apply in this case. “While the one-year habeas statute of limitations
may be subject to equitable tolling, such relief is available only where the petitioner is unable to
file the action within the statutory period due to extraordinary circumstances outside his control
and through no fault of his own.” Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006). “Mistakes
of law or ignorance of proper legal procedures are not extraordinary circumstances warranting
invocation of the doctrine of equitable tolling.” Id.; see also Davis v. Humphreys, 747 F3d 497,
500 (7th Cir. 2014) (“it is established that prisoners’ shortcomings of knowledge about the AEDPA
or the law of criminal procedure in general do not support tolling.”).
B. Conclusion
Mr. Robey’s habeas petition is barred by the one-year statute of limitations of the AEDPA.
He has not shown any basis for finding that his petition was timely filed. 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.

II. 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 Mr. Robey 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.
_______________________________
December 23, 2014
Date: _________________________

Distribution:
Rickey Robey
No. 874281
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana