LAMPKINS v. REEVES
ORDER - granting 7 Motion to Dismiss. The respondent's motion to dismiss, dkt. 7 , is granted. The petition for writ of habeas corpus is dismissed. Final judgment shall now enter. Copy to Petitioner via US Mail. Signed by Judge Tanya Walton Pratt on 4/1/2021. (NAD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KELVIN L. LAMPKINS,
Order Granting Motion to Dismiss
Petitioner Kelvin L. Lampkins filed this 28 U.S.C. § 2254 petition for a writ of habeas
corpus challenging his 2017 Indiana state court conviction for dealing in a Schedule II controlled
substance. The respondent has moved to dismiss the petition as untimely.
Mr. Lampkins pled guilty in 2017 to dealing in a Schedule II controlled substance. Dkt. 7-1
at 15−16. The trial court sentenced him on February 22, 2017, to eight years of probation. Id. at
16. Mr. Lampkins did not appeal. His probation was later revoked. Id. at 18.
On July 19, 2019, Mr. Lampkins filed a motion to correct erroneous sentence. Id. at 21.
The trial court denied the motion, id. at 21, and the Indiana Court of Appeals dismissed
Mr. Lampkins's appeal on February 15, 2020. Dkt. 7-4 at 2.
On July 7, 2020, Mr. Lampkins filed a petition for writ of habeas corpus in this Court,
arguing that the Indiana trial court abused its discretion by denying his motion to correct erroneous
sentence without a hearing. Dkt. 1. In a subsequent filing, he alleges that his sentence exceeds the
maximum allowed by statute.
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(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;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
A petitioner may also be entitled to equitable tolling 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).
Mr. Lampkins's petition is untimely. His conviction became final on March 24, 2017,
which was the deadline for him to file a timely direct appeal. 28 U.S.C. § 2254(d)(1)(A)
(conviction final when time expires for seeking direct review); see Ind. R. Crim. P. 19 (notice of
appeal must be filed within 30 days after sentencing). He therefore had until March 24, 2018, to
file a timely habeas corpus petition. He filed his petition on July 7, 2020, well past the statutory
Mr. Lampkins argues that his motion to correct erroneous sentence reset the limitation
period. Dkt. 8 at 2−3. But a motion to correct erroneous sentence is an application for collateral
review. Cf. State ex rel. Gordon v. Vanderburgh Cir. Ct., 616 N.E.2d 8, 9 (Ind. 1993) (per curiam)
(treating motion to correct erroneous sentence as a petition for post-conviction relief). Such an
application may toll, but not reset, the limitation period. Fernandez v. Sternes, 227 F.3d 977,
978−79 (7th Cir. 2000) (finding that it is illogical to toll a limitations period that has already
passed). And tolling does no good for Mr. Lampkins, because the § 2244(d) limitation period had
already expired by the time he filed his motion to correct erroneous sentence in July 2019. Id.
The following table summarizes the key dates:
March 24, 2017
365 days left in limitation period
Federal Habeas Petition Due
March 24, 2018
0 days left in limitation period
Motion to Correct Erroneous
July 19, 2019
482 days beyond limitation period
Federal Habeas Petition Filed
June 2, 2020
836 days beyond limitation period
The respondent's motion to dismiss, dkt. , is granted. The petition for writ of habeas
corpus is dismissed. Final judgment shall now enter.
IT IS SO ORDERED.
KELVIN L. LAMPKINS
1300 S. Ebright
Muncie, IN 47302
Andrew A. Kobe
INDIANA ATTORNEY GENERAL
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