MILLIGAN v. ZATECKY
Filing
20
Order Denying Petition for a Writ of Habeas Corpus - Petitioner Sam Milligan is an Indiana prisoner who filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court convictions for murder and attempted murder. In the end, the Court concludes that his petition is time-barred and that a certificate of appealability should not issue. Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Courts requires the district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Reasonable jurists could not disagree that Mr. Mulligan's habeas petition is barred by the statute of limitations. Therefore, a certificate of appealability is denied. (Copy to Petitioner via U.S. mail) Signed by Judge James R. Sweeney II on 9/30/2019.(JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SAM MILLIGAN,
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Petitioner,
v.
DUSHAN ZATECKY,
Respondent.
No. 1:17-cv-03336-JRS-TAB
Order Denying Petition for a Writ of Habeas Corpus
Petitioner Sam Milligan is an Indiana prisoner who filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court convictions for murder and
attempted murder. In the end, the Court concludes that his petition is time-barred and that a
certificate of appealability should not issue.
I.
Background
The background necessary to resolve Mr. Milligan’s § 2254 motion is relatively brief given
that the Court ultimately concludes that his claims are time-barred.
The following is the
background relevant to this Order as summarized by the Indiana Court of Appeals when denying
Mr. Milligan’s successive petitioner for post-conviction relief:
On September 20, 1985, Milligan was involved in a domestic dispute that resulted
in a double homicide and an attempted murder of a third person. On September 25,
1985, the State charged Milligan with the murders of Margaret Milligan and
Nkosana Ncube and the attempted murder of Thandeka Ncube.
....
[After Mr. Mulligan’s guilty plea,] [o]n August 5, 1986, the court sentenced
Milligan to sixty years for each count of murder and fifty years for attempted
murder and ordered that the sentences be served consecutive to each other.
On January 26, 1996, Milligan filed a pro se petition for post-conviction relief. On
June 12, 1996, the post-conviction court denied the petition.
On April 25, 2000, this court granted Milligan permission to file a successive
petition for post-conviction relief. In May 2000, Milligan, pro se, filed a form
successive post-conviction relief petition.
On May 30, 2000, the State filed an answer to Milligan’s petition. On February 11,
2015, the State filed a Motion to Require Petitioner to Submit Case by Affidavit
pursuant to Post–Conviction Rule 1(9)(b),11 and the court granted the motion and
gave Milligan until June 15, 2015 to submit his case by affidavit. On June 15, 2015,
Milligan filed his affidavit in support of his verified petition for post-conviction
relief. . . . . On January 7, 2016, the court denied Milligan’s petition.
Milligan v. State, 64 N.E.3d 1269, 2016 WL 5955907, *1, *4 (Ind. Ct. App. 2016).
After the Indiana Court of Appeals affirmed the denial of Mr. Mulligan’s successive
petition for post-conviction relief, he petitioned the Indiana Supreme Court for transfer. The
Indiana Supreme Court denied transfer on January 19, 2017. Mr. Mulligan filed this action on
September 20, 2017.
II.
Discussion
Mr. Milligan raises several constitutional challenges to his conviction in his § 2254
petition. The respondent argues that Mr. Milligan’s petition is time-barred. Mr. Milligan contends,
among other things, that he is entitled to equitable tolling and thus his petition should not be
dismissed as time-barred. The Court ordered supplemental briefing on the question of equitable
tolling, and the petition is now ripe for decision. In the end, the Court concludes that Mr. Mulligan
has not carried his burden to establish that he is entitled to equitable tolling, and his petition must
be dismissed as time-barred.
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 (“AEDPA”) of 1996, revised several of the statutes governing federal
habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). One such revision was the creation
of the one-year statute of limitations period, which typically begins to run after one of four
triggering dates. See 28 U.S.C. § 2244(d). Mr. Mulligan, however, was convicted prior to
AEDPA, and thus his one-year period began running on the day AEDPA became effective, April
24, 1996. See Pace v. DiGuglielmo, 544 U.S. 408, 422 (2005). On that date, Mr. Mulligan had
pending his first petition for post-conviction relief in state court, which stops the one-year clock.
See Day v. McDonough, 547 U.S. 198, 201 (2006) (“The one-year clock is stopped . . . during the
time the petitioner’s ‘properly filed’ application for state postconviction relief ‘is pending.’”
(quoting 28 U.S.C. § 2244(d)(2))).
Mr. Mulligan’s first petition for post-conviction relief was denied on June 12, 1996, and
he did not appeal this decision to the Indiana Court of Appeals. Dkt. No. 7-1 at 3; Milligan, 2016
WL 5955907, at *4. His one-year limitations period began to run thirty-days later, on July 12,
1996, when the time to appeal elapsed. 1 Mr. Milligan took no further action for over three years,
when he filed a successive petition for post-conviction relief on October 27, 1999. Dkt. 7-1 at 3.
That petition was dismissed as successive on December 16, 1999. Dkt. 7-1 at 3. On March 7,
2000, Mr. Mulligan asked the Indiana Court of Appeals to authorize a successive post-conviction
proceeding, which the Indiana Court of Appeals granted on April 25, 2000. Dkt. 7-4. The state
post-conviction court denied his successive petition over fifteen years later in January 2016. The
Indiana Court of Appeals affirmed this denial on October 13, 2016. Dkt. 7-9. The Indiana Supreme
Court denied transfer on January 19, 2017, and Mr. Mulligan filed the instant habeas petition in
this Court on September 19, 2017.
1
The Seventh Circuit has not decided whether the limitations period runs during this period. See
Johnson v. McCaughtry, 265 F.3d 559, 563 (7th Cir. 2001). The Court will not include this period
because whether it is included is ultimately irrelevant.
The respondent argues that by the time Mr. Mulligan had properly filed his successive
petition, the one-year statute of limitations had long ago elapsed, as nothing paused the limitations
period for over three years from July 12, 1996 (when the time to appeal the denial of his first postconviction petition elapsed) through March 7, 2000 (when he requested authorization to file a
successive post-conviction petition, which was subsequently granted). Mr. Mulligan resists this
conclusion, arguing that he is entitled to “reset” the statute of limitations under § 2244(d)(1)(B) or
(D) or that he is entitled to equitable tolling. Specifically, he argues that he “was denied adequate
notice” of the denial of his first post-conviction petition because it was sent to the Indiana State
Public Defenders Office instead of to him. Dkt. No. 13 at 6. He argues: “Because the notice of
judgment was never sent to Mulligan and the Indiana Court of Appeals acknowledged this by
granting his properly filed successive petition for post-conviction, giving him a second chance in
his attempt to exhaust his remedies, Milligan should be granted either a reset of his one year statute
of limitations when the successive petition was granted, or equitable tolling on the time between
the failure of notice on the judgment and the refilling [sic] of the successive petition for P-CR.”
Id. at 7.
First, Mr. Mulligan is not entitled to a “reset” of the statute of limitations under
§ 2244(d)(1)(B) or § 2244(d)(1)(D). Section 2244(d)(1)(B) provides that the one-year limitations
period runs “from the latest of . . . (B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action.” The Seventh Circuit has not
“defined what constitutes an ‘impediment’ for purposes of § 2244(d)(1)(B), [but] the plain
language of the statute makes clear that whatever constitutes an impediment must prevent a
prisoner from filing his petition.” Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir. 2007) (citation
and quotation marks omitted). The State did not prevent Mr. Mulligan from filing a habeas
petition, and thus § 2244(d)(1)(B) is not implicated.
Section 2244(d)(1)(D) provides that the one-year limitations period runs “from the latest
of . . . the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” What Mr. Mulligan discovered was not the
“factual predicate” for any of his claims, but that his initial post-conviction petition had been
denied. Indeed, Mr. Mulligan appears to clarify in his reply that his successive post-conviction
application was not based on any “newly discovered evidence.” Dkt. No. 13 at 3. Thus
§ 2244(d)(1)(D) is also inapplicable.
Second, although Mr. Mulligan is correct that the statute of limitations is subject to
equitable tolling, he has not carried his burden to present facts showing that he is entitled to
equitable tolling. “[A] petitioner is entitled to equitable tolling only if he shows (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). These two “elements”
are distinct. Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 756 (2016). The
diligence element “covers those affairs within the litigant’s control; the extraordinarycircumstances prong, by contrast, is meant to cover matters outside its control.” Id. It is the
petitioner’s “burden to establish both [elements].” Socha v. Boughton, 763 F.3d 674, 683 (7th Cir.
2015).
Courts have recognized that the failure to receive notice of a state court’s decision can
constitute an extraordinary circumstance. See, e.g., Fue v. Biter, 842 F.3d 650 (9th Cir. 2016) (en
banc) (collecting cases and holding that the petitioner’s “lack of knowledge of the denial [of his
state-court claims], if proven, would entitle him to equitable tolling” and that his fourteen-month
delay in inquiring about his case showed “reasonable diligence” under the circumstances”).
Accepting Mr. Mulligan’s assertion that he did not receive notice of the denial of his first postconviction petition, he has met this element of equitable tolling.
But Mr. Mulligan has not shown diligence. The diligence element requires “reasonable
diligence . . . not maximum feasible diligence.” Holland, 560 U.S. at 653. However, “mere
conclusory allegations of diligence are insufficient and reasonable effort throughout the limitations
period is required.” Mayberry v. Dittmann, 904 F.3d 525, 531 (7th Cir. 2018). In other words, to
meet the second element, Petitioner must show that “he was reasonably diligent in pursuing his
rights throughout the limitations period and until he finally filed his untimely habeas petition.”
Carpenter, 840 F.3d at 870.
Mr. Mulligan would thus have to establish that he was diligently pursuing his rights during
all time periods when his limitations clock was not paused due to a properly filed state postconviction proceeding. See Day, 547 U.S. at 201. This includes at least two time periods: (1) from
June 12, 1996 (when his first post-conviction petition was denied) through March 7, 2000 (when
he requested authorization to file a successive post-conviction petition, which was subsequently
granted); and (2) from January 19, 2017 (when the Indiana Supreme Court denied transfer of the
denial of his successive state post-conviction petition) through September 19, 2017 (when Mr.
Mulligan filed the instant habeas petition in this Court).
The Court ordered supplemental briefing on the question of diligence, and in their
supplemental briefs, the parties dispute whether Mr. Mulligan was diligent during the first period.
The only specific facts offered by Mr. Mulligan are that he called the post-conviction court
sometime in 1997 and did not receive a response, and that he called again sometime in 1999 and
was informed that his post-conviction petition was denied in 1996. Dkt. 18 at 3. This arguably
contradicts the representation Mr. Mulligan made to the Indiana Court of Appeals that he was
unaware his first post-conviction petition was denied until his second post-conviction petition was
summarily denied as successive on December 16, 1999. 2 See dkt. 7-2 at 2.
The Court need not resolve this discrepancy or whether two calls over a three-year period
amounts to reasonable diligence because Mr. Mulligan made no effort to establish reasonable
diligence during the second time period. Approximately eight months elapsed between when the
Indiana Supreme Court denied transfer on January 19, 2017, and when Mr. Mulligan filed the
instant habeas petition in this Court on September 19, 2017. Mr. Mulligan does not offer any
explanation for this significant delay, let alone facts establishing that he exercised reasonable
diligence. Mr. Mulligan has therefore failed to establish that “he was reasonably diligent in
pursuing his rights throughout the limitations period and until he finally filed his untimely habeas
petition.” Carpenter, 840 F.3d at 870 (emphasis added).
Absent the requisite showing of diligence, Mr. Mulligan is not entitled to equitable tolling.
His habeas petition must therefore be dismissed as untimely. Final judgment consistent with this
Order shall issue.
2
Respondent argues that Mr. Mulligan acknowledged in his reply brief that he received notice that
his first post-conviction proceeding was denied in October 1997. Dkt. 17 at 3-4. But Mr.
Mulligan’s reference to October 1997 appears to be a mistake, as the context surrounding that
statement suggests that Mr. Mulligan was arguing that he became aware of the denial at the time
he filed his second post-conviction petition, which was on October 27, 1999. See Dkt. 13 at 6.
Notably, if the Court accepts this date as when Mr. Mulligan became aware of the post-conviction
court’s denial of his first petition, the statute of limitations elapsed even if Mr. Mulligan was
entitled to equitable tolling for the first period. This is because Mr. Mulligan did not have a
properly filed state post-conviction proceeding to stop the clock until March 7, 2000, which is over
four months after October 27, 1999. When this period is added to the exactly eighth-month period
between January 19, 2017, and September 19, 2017, over a year of non-tolled time elapsed.
III.
Certificate of Appealability
“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district
court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S. Ct. 759, 773 (2017).
Instead, a state prisoner must first obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1).
“A certificate of appealability may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a claim is resolved on
procedural grounds (such as limitations), a certificate of appealability should issue only if
reasonable jurists could disagree about the merits of the underlying constitutional claim and about
whether the procedural ruling was correct. Flores-Ramirez v. Foster, 811 F.3d 861, 865 (7th Cir.
2016) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District
Courts requires the district court to “issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Reasonable jurists could not disagree that Mr. Mulligan’s
habeas petition is barred by the statute of limitations. Therefore, a certificate of appealability is
denied.
IT IS SO ORDERED.
Date: 9/30/2019
Distribution:
SAM MILLIGAN
863906
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Chandra Hein
INDIANA ATTORNEY GENERAL
chandra.hein@atg.in.gov
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