PARISH v. HYATTE et al
Filing
15
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT - Mr. Parish's motion to file a belated reply in support of his motion set aside, dkt. 11 , is GRANTED. The Court has considered Mr. Parish's reply. The motion to set aside, dkt. 9 , is DENIED for the reasons set forth above. SEE ORDER. Signed by Judge James Patrick Hanlon on 1/28/2025.(AAS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTHONY "A.P." PARISH,
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Petitioner,
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v.
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WILLIAM HYATTE Warden,
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TODD ROKITA Attorney General,
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FRANCIS C. GULL The Honorable, Judge, )
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Respondents.
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No. 1:21-cv-00622-JPH-CSW
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
Anthony Parish has filed a motion for relief from judgment, seeking to set
aside the final judgment previously entered against him in this action under 28
U.S.C. § 2254. For the reasons below, that motion, dkt. [9], is DENIED.
I. Background
On March 15, 2021, Mr. Parish filed a pro se petition for writ of habeas
corpus under § 2254. Dkt. 1. The petition did not specify the underlying cause
number for Mr. Parish's state-court conviction but did refer to the cause number
in a post-conviction relief action, 02D05-1401-PC-18. Id. at 1. From this
information, the Court ordered Respondents to appear and respond to the
petition as one challenging Mr. Parish's 2009 convictions for murder and other
offenses in cause number 02D04-0901-MR-000003. Dkt. 3.
Respondents thereafter filed a motion to dismiss this action as untimely
under 28 U.S.C. § 2244(d). Dkt. 5. In it, Respondents noted that Mr. Parish's
direct appeal from his convictions was resolved on January 14, 2011, when the
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Indiana Supreme Court denied transfer following the Indiana Court of Appeals'
affirmance. Id. at 6; dkt. 5-2. Also, Respondents noted that Mr. Parish did not
file his post-conviction relief petition in cause number 02D05-1401-PC-18 until
January 14, 2014, or more than one year after his direct appeal proceedings
were deemed final and when he did not file a petition for certiorari with the
United States Supreme Court within 90 days of the denial of transfer. Id.
On January 4, 2022, after Mr. Parish failed to respond to the motion to
dismiss and after it had been pending for over five months, the Court granted
the motion. Dkt. 7. The Court denied a certificate of appealability and entered
final judgment. Id.; dkt. 8. Mr. Parish did not attempt to appeal this order.
On March 7, 2022, Mr. Parish filed another habeas corpus action under §
2254 in the Northern District of Indiana. 1 On October 5, 2022, Chief Judge
DeGuilio dismissed Mr. Parish's petition as an unauthorized successive petition
and an improper attempt to challenge this Court's dismissal order. Parish v.
Warden, No. 3:22-CV-182-JD-MGG, 2022 WL 16840392, at *1 (N.D. Ind. Oct. 5,
2022).
On June 27, 2024, Mr. Parish by counsel filed a motion for relief from
judgment in this case. Dkt. 9. In it, Mr. Parish notes that in fact, he first filed a
Under 28 U.S.C. § 2241(d), proper venue for Mr. Parish's habeas corpus actions,
challenging state court convictions from Allen County, lay in the Northern District of
Indiana. In their motion to dismiss before this Court, Respondents acknowledged
improper venue but did not move to dismiss on that basis. Dkt. 5 at 1, n.1. Proper venue
under § 2254 is waivable, unlike subject matter jurisdiction, which is not waivable.
Harris v. Warden, 425 F.3d 386, 388 (7th Cir. 2005); Moore v. Olson, 368 F.3d 757, 760
(7th Cir. 2004).
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petition for post-conviction relief in state court on October 31, 2011, under cause
number 02D05-1110-PC-160, which the Respondents failed to identify in their
motion to dismiss. This action remained pending until February 6, 2014, when
the state court granted Mr. Parish's motion to withdraw the petition. 2 By that
date, Mr. Parish had filed cause number 02D05-1401-PC-18. Respondents state
that they inadvertently failed to discover this first post-conviction filing when
they moved to dismiss Mr. Parish's habeas corpus petition as untimely. Dkt. 10.
Further, Respondents concede that "when the correct statute-of-limitation
calculation is done including the time Parish's initial post-conviction petition was
pending, his first habeas petition filed in this Court was done within the
limitations period and therefore timely filed." Id. at 2.
In other words, it is now acknowledged by all parties that the first postconviction relief filing tolled the § 2244(d) statute of limitations, beginning
October 31, 2011; that the tolling continued until the final resolution of the
second post-conviction relief petition on November 19, 2020; and that this action
was filed within the one-year time limit of § 2244(d) when this tolling is taken
into account. In a reply in support of his motion for relief, Mr. Parish has
submitted a sworn affidavit, stating that he was unaware that Respondents had
miscalculated the § 2254 filing deadline until November 2023, when he was so
informed by his current attorney. Dkt. 14-1.
Mr. Parish later moved to amend this petition on March 22, 2018. There are no
subsequent entries on the state court docket indicating the status of this motion.
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II. Discussion
Respondents assert that despite the acknowledged error in the calculation
of the filing deadline in their motion to dismiss, Mr. Parish is not entitled to relief
from judgment under Federal Rule of Civil Procedure 60(b). 3 Under that Rule, a
Court may grant relief from judgment for any of the six listed reasons, including
"(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence . . . ; (3) fraud . . . , misrepresentation, or misconduct by an opposing
party; . . . or (6) any other reason that justifies relief." Relief under Rule 60(b)(6)
"is available only when Rules 60(b)(1) through (b)(5) are inapplicable [and] [e]ven
then, 'extraordinary circumstances' must justify reopening.'" Kemp v. United
States, 596 U.S. 528, 533 (2022). Additionally, "Rule 60(c) imposes deadlines
on Rule 60(b) motions. All must be filed 'within a reasonable time.' But for some,
including motions under Rule 60(b)(1), that 'reasonable time' may not exceed one
year. Motions under Rule 60(b)(6) are not subject to this additional 1-year
constraint." Id. (citing Fed. R. Civ. P. 60(c)(1)).
The Supreme Court's decision in Kemp is directly applicable here. In that
case, Kemp filed a motion to vacate sentence under 28 U.S.C. § 2255. The district
court dismissed it as untimely. Kemp did not appeal or otherwise challenge that
ruling for two years, when he filed a motion for relief from judgment, invoking
3 Although Mr. Parish also invoked Rule 59(e) in his original motion to set aside, Rule
60(b) governs this matter because his motion was filed more than twenty-eight days
after final judgment was entered. See Banks v. Chicago Bd. of Educ., 750 F.3d 663, 666
(7th Cir. 2014) ("When a motion is filed more than 28 days after the entry of judgment,
whether the movant calls it a Rule 59(e) motion or a Rule 60(b) motion, we treat it as a
Rule 60(b) motion.").
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Rule 60(b)(6)'s "catch-all" provision. The motion was denied and the Eleventh
Circuit affirmed, though noting the district court's original ruling that the § 2255
motion was untimely was incorrect.
The Supreme Court affirmed the Eleventh Circuit. In so doing, it first noted
that although Kemp had invoked 60(b)(6), the "motion arguably sought
reopening based on a kind of 'mistake' covered by Rule 60(b)(1)" and the Court
reviewed the matter accordingly. Id. at 532. It held that the term "mistake"
included judicial errors of any kind, whether or not "obvious." Id. at 534-35. As
such, and "[b]ecause Kemp's Rule 60(b) motion alleged such a legal error, we
affirm the Eleventh Circuit's judgment that the motion was cognizable under
Rule 60(b)(1), subject to a 1-year limitations period, and, therefore, untimely."
Id. at 539.
Here, Mr. Parish invokes subdivisions (1), (3), and (6) of Rule 60(b). But,
the Court concludes that Kemp requires that Mr. Parish's motion be analyzed
under either subdivision (1), "mistake", or (3), "misrepresentation." That is to say,
the dismissal of this action was based on either a mistake of fact by Respondents
and/or the Court, or a "misrepresentation" by Respondents. It is not apparent to
the Court why an attorney's incorrect argument as to a filing deadline and
acceptance of that argument by a Court should differ from a judge's
miscalculation on the same issue. Because the error here clearly is cognizable
under either subdivision (1) or (3), it would be improper to analyze this issue
under Rule 60(b)(6). Id. at 533 ("This last option [Rule 60(b)(60] is available only
when Rules 60(b)(1) through (b)(5) are inapplicable."). That being the case, the
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one-year time limit for motions under Rule 60(b)(1) or 60(b)(3) applies to Mr.
Parish's motion. The Kemp opinion does not give any indication that that oneyear time limit can be extended for any reason, and the Seventh Circuit has held
that Rule 60(c)'s deadline is "a mandatory claims-processing rule" that "if
properly invoked, must be enforced." In re Cook Med., Inc., 27 F.4th 539, 543
(7th Cir. 2022).
Nonetheless, even if the deadline could be extended, the Court would not
find grounds for extending it. Mr. Parish's sworn statement alleges that he lacked
any knowledge that Respondents had miscalculated the filing deadline until, at
the earliest, November 2023. But on March 25, 2022, Chief Judge DeGuilio
initially dismissed Mr. Parish's habeas corpus petition as untimely. No. 3:22-CV182-JD-MGG, dkt. 2 (N.D. Ind. Mar. 25, 2022). In that order, Chief Judge
DeGuilio acknowledged the existence of the first post-conviction relief filing in
cause number 02D05-1110-PC-160, which would have initially tolled the habeas
filing deadline; but that even so, "the federal limitations period expired . . . on
May 3, 2021." Id.
Mr. Parish was proceeding pro se in that matter and there is no indication
that he did not receive this order. To the contrary, he successfully petitioned
Chief Judge DeGuilio to set aside this initial dismissal on the basis of his sworn
representations that COVID and law library limitations had prevented his filing
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prior to May 3, 2021, and that he had not previously filed a federal action
challenging his conviction. Id. at dkt. 7. 4
Mr. Parish was therefore on clear notice of the error regarding the
timeliness of his petition in this case no later than March 25, 2022, but still
waited over two years to file this motion to set aside judgment. Mr. Parish thus
did not act within a reasonable time.
III. Conclusion
Mr. Parish's motion to file a belated reply in support of his motion set
aside, dkt. [11], is GRANTED. The Court has considered Mr. Parish's reply. The
motion to set aside, dkt. [9], is DENIED for the reasons set forth above.
SO ORDERED.
Date: 1/28/2025
Distribution:
All ECF-registered counsel of record via email
Chief Judge DeGuilio, in ultimately dismissing the petition as an unauthorized
successive petition, also suggested that Mr. Parish likely made knowingly false
statements in this regard, because he failed to acknowledge his previous filing before
this Court on March 15, 2021. Id. at dkt. 24, 2022 WL 16840392 at * 2.
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