MILLER v. SUPERINTENDENT
ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - For the reasons explained in this Entry, the effort Arthula Miller to navigate those barriers to challenge his state conviction fails. His petition for a writ of habeas corpus will therefore be denied. In addition, the Court finds that a certificate of appealability should not issue. (SEE ENTRY). Signed by Judge Larry J. McKinney on 5/31/2017. (copy to Petitioner via US Mail) (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
A petitioner must overcome several procedural barriers before a court will review
the merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in
Daniels v. United States, “[p]rocedural barriers, such as statutes of limitations and rules
concerning procedural default and exhaustion of remedies, operate to limit access to
review on the merits of a constitutional claim.” 532 U.S. 374, 381 (2001). See also United
States v. Olano, 507 U.S. 725, 731 (1993). For the reasons explained in this Entry, the
effort Arthula Miller to navigate those barriers to challenge his state conviction fails. His
petition for a writ of habeas corpus will therefore be denied. In addition, the Court finds
that a certificate of appealability should not issue. This disposition is compelled by the
following facts and circumstances:
A Marion County jury found Miller guilty of rape, criminal confinement,
criminal deviate conduct, burglary, intimidation and battery. An executed sentence of 90
years was imposed.
Miller’s direct appeal was dismissed on October 5, 2007, so that he could
utilize the Davis/Hatton procedure. This procedure involves the termination or suspension
of a direct appeal that has already been initiated, upon appellate counsel’s motion for
remand or stay, in order to allow a post-conviction relief petition to be pursued in the trial
court. See Slusher v. State, 823 N.E.2d 1219, 1222 (Ind.Ct.App. 2005) (citing Hatton v.
State, 626 N.E.2d 442, 443 (Ind. 1993); Davis v. State, 368 N.E.2d 1149, 1151 (1977)). If,
after a full evidentiary hearing, the petition for post-conviction relief is denied, the appeal
can be reinitiated. See id. Under such circumstances, the direct appeal and the postconviction relief appeal are consolidated. See id. Therefore, in addition to the issues
initially raised in the direct appeal, the issues litigated in the post-conviction relief
proceeding may also be raised. See id. “This way, a full hearing and record on the issues
will be included in the appeal.” Id.
On March 7, 2011, Miller filed a petition for post-conviction relief. That
petition was denied on December 5, 2012. This disposition was affirmed in Miller v. State,
997 N.E.2d 1184 (Ind. Ct. App. 2013) (Table). Transfer was denied by the Indiana
Supreme Court on September 25, 2014, and the United States Supreme Court then denied
Miller’s petition for certiorari review. 135 S. Ct. 1736 (2015). The filing of the present action
followed on May 3, 2016. Miller’s custodian has appeared in the action and argues, among
other matters, that the action was not timely filed.
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. See Williams v. Taylor, 529 U.S. 362, 404 (2000). Along
with triggering dates not applicable here, “[u]nder 28 U.S.C. § 2244(d)(1)(A), a state
prisoner seeking federal habeas relief has just one year after his conviction becomes final
in state court to file his federal petition.” Gladney v. Pollard, 799 F.3d 889, 894 (7th Cir.
The dates pertinent to the application of the statute of limitations in the
present case are the following:
Miller’s conviction became final on October 11, 2007. This was the day his
direct appeal was dismissed. See Gonzalez v. Thaler, 132 S. Ct. 641, 653-54
(2012) (“[T]he judgment becomes final . . . when the time for pursuing direct review
. . . expires.”).
Miller had one year, through October 11, 2008, in which to either file his
federal petition for writ of habeas corpus or an action for state post-conviction relief
if his statute of limitations was to be tolled.
Miller’s state post-conviction relief action was filed on May 7, 2011, which
was 877 days after his conviction became final.
The state for post-conviction relief action remained pending until April 6,
2015, at which time the United States Supreme Court denied Miller’s petition for a
writ of certiorari review.
The federal habeas action was filed on May 3, 2016, which was 393 days
after the petition for a writ of certiorari review was denied.
The respondent is correct that this action was filed more than eight and one-
half years after Miller’s conviction became final and that Miller’s state post-conviction relief
action was filed more than one year after his conviction became final.
Miller suggests that he is entitled to a period of equitable tolling because his
attorney abandoned him following the dismissal of his direct appeal. The limitations period
may be equitably tolled if a petitioner establishes “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Miller’s argument of equitable tolling lacks merit for two
reasons. First, the three and one-half year period between the dismissal of Miller’s appeal
and the filing of his state post-conviction relief action shows that Miller was not diligent in
pursuing his post-conviction relief remedy. Second, Miller permitted more than a full year
to elapse between the denial of his petition for certiorari review and the filing of the federal
“[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,
Miller has encountered the hurdle produced by the one-year statute of limitations. He has
not shown the existence of circumstances permitting him to overcome this hurdle, and
hence is not entitled to the relief he seeks. His petition for a writ of habeas corpus is
therefore dismissed as untimely without a decision being made as to the merits of his
claims. See Bachman v. Bagley, 487 F.3d 979, 982 (6th Cir. 2007). Judgment consistent
with this Entry shall now issue.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the
Court finds that Miller 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 declines to issue a certificate of appealability.
IT IS SO ORDERED.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Jesse R. Drum
INDIANA ATTORNEY GENERAL
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
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