MOSLEY v. SUPERINTENDENT WABASH VALLEY CORRECTIONAL FACILITY

Filing 12

Entry and Order Dismissing Action - Corey Lamont Mosley seeks a writ of habeas corpus pertaining to his convictions in an Indiana state court in 1997 of several offenses. In this case, Mosley has encountered the hurdles of non-cognizable claims un der 28 U.S.C. § 2254(a), the statute of limitations, and the doctrine of procedural default. He has not shown the existence of circumstances permitting him to overcome these hurdles, and hence is not entitled to the relief he seeks. His pet ition for a writ of habeas corpus is therefore dismissed. Judgment consistent with this Entry shall now issue. The court denies a certificate of appealability. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 4/9/2014.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
COREY LAMONT MOSLEY,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

)
)
)
)
)
)
)
)

Case No. 2:14-cv-003-JMS-WGH

Entry and Order Dismissing Action
I.
A.
Corey Lamont Mosley seeks a writ of habeas corpus pertaining to his convictions in an
Indiana state court in 1997 of several offenses. By way of background, Mosley had been charged
with three counts of conspiracy to commit murder, two counts of murder, conspiracy to commit
robbery, robbery, and attempted murder. In a signed plea agreement with the State, Mosley pled
guilty to murder, attempted murder, and two counts of conspiracy to commit murder. The State
agreed to dismiss the remaining charges and to not seek the death penalty. In addition, the plea
agreement did not prevent the State from pursuing a sentence of life without parole, which was
the sentence the trial court ultimately imposed on August 22, 1997.
There was no direct appeal filed. An action for post-conviction relief was filed on August
24, 2004. Mosley withdrew that petition on February 16, 2005, and then filed his second petition
for post-conviction relief four years later on May 20, 2009. The second post-conviction relief
action remained pending in the Indiana state courts until October 10, 2013. The State of Indiana
has opposed Mosley’s habeas petition on procedural grounds. Mosely has not replied.

B.
The State’s first argument is that Mosley’s habeas petition was not timely filed.
In an attempt to Acurb 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 AEDPA, revised
several of the statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404
(2000). One such revision provides that:
a state prisoner has one year to file a federal petition for habeas corpus relief,
starting from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). . . . “The one-year clock is stopped, however, during the time the
petitioner's ‘properly filed’ application for state postconviction relief ‘is
pending.’” Day [v. McDonough, 547 U.S. 198, 201 (2006)] (quoting 28 U.S.C. §
2244(d)(2)).
Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012).
Mosley’s conviction and sentence became final on September 21, 1997, the last day on
which he could have filed an appeal with respect to the imposition of sentence on August 22,
1997. See Griffith v. Kentucky, 479 U.S. 314, 321 & n.6 (1987) (stating a conviction is “final”
when the time for seeking direct review from the judgment affirming the conviction has expired);
Powell v. Davis, 415 F.3d 722, 726 (7th Cir. 2005). Thus, Mosley had one year from September
21, 1997, to file his petition for federal collateral review or otherwise toll the statute of
limitations. See § 2244(d)(1)(A).
Mosley’s habeas petition was signed and placed in the institution mail on January 7,
2014. Even applying the prison mailbox rule, see Jones v. Bertrand, 171 F.3d 499 (7th Cir.
1999), Mosley filed his petition for writ of habeas corpus 15 years and three months past the date
the 1-year statute of limitations prescribed by 28 U.S.C. § 2244(d)(1)(A)) had expired. (Other
provisions of § 2244(d)(1) are inapplicable here.) It is true that during this period Mosley filed

and pursued post-conviction relief. However, by the time the post-conviction relief action was
first filed in August 2004, the statute of limitations had been expired for nearly eight years. The
consequence of this is that the actions for post-conviction relief have no impact on the
computation of the statute of limitations in § 2244(d)(1). Fernandez v. Sternes, 227 F.3d 977,
978–79 (7th Cir. 2000) (explaining that it is illogical to toll a limitations period that has already
passed). His post-conviction actions also failed to restart the one-year statute of limitations); see
also De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) (“[W]hat [§ 2244(d)](2) does is
exclude particular time from the year, not restart that year.”); Teas v. Endicott, 494 F.3d 580,
581–82 (7th Cir. 2007) (holding state court adjudication of a collateral attack on a prisoner’s
conviction more than one year after the expiration of the one year time limit does not “restart”
the statute of limitations under § 2244(d)).
The first argument, that the habeas petition was not timely filed, is accepted.
C.
The State also argues that Mosley has committed unexcused procedural default because
he did not include his habeas claims in his petition to transfer filed with the Indiana Supreme
Court. The expanded record establishes that the only claim raised in the petition to transfer
related to the defense of laches, that claim is not raised here.
Procedural default occurs “when a habeas petitioner has failed to fairly present to the
state courts the claim on which he seeks relief in federal court and the opportunity to raise that
claim in state court has passed.” Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). This
includes a defendant’s failure to seek discretionary review from a state’s highest court in a
collateral proceeding challenging the defendant’s conviction. O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999)("'[S]tate prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State's established appellate review
process,' including review by the state's court of last resort, even if review in that court is
discretionary."); Hough v. Anderson, 272 F.3d 878, 892-93 (7th Cir. 2001) (petitioner's failure to
present issue to Indiana Supreme Court constituted procedural default).
When procedural default has occurred, it can be overcome if a habeas petitioner “can
demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the
petitioner's ‘actual and substantial disadvantage,’); or (b) that failure to consider his claim would
result in a fundamental miscarriage of justice (i.e., a claim of actual innocence).” Conner v.
McBride, 375 F.3d 643, 648 (7th Cir. 2004) (internal citations omitted). Mosley has shown
neither of these circumstances and in consequence the court is unable to reach the merits of his
habeas claims.
D.
The State also raises a residual matter.
A state prisoner seeking a writ of habeas corpus bears the burden of demonstrating that
he "is in custody in violation of the Constitution or laws or treaties of the United States." 28
U.S.C. ' 2254(a). A viable habeas claim pursuant to § 2254(a) necessarily precludes a claim
which is not based on alleged noncompliance with federal law. Wilson v. Corcoran, 131 S. Ct.
13, 16 (2010); Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004)(“To say that a petitioner's
claim is not cognizable on habeas review is thus another way of saying that his claim ‘presents
no federal issue at all.’”)(quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)).
Mosley’s habeas petition includes several claims based on the asserted violation of
provisions of the Indiana Constitution. Consistent with the foregoing, however, such claims are
not cognizable under § 2254(a) and are therefore dismissed.

E.
“[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, Mosley has encountered the
hurdles of non-cognizable claims under 28 U.S.C. § 2254(a), the statute of limitations, and the
doctrine of procedural default. He has not shown the existence of circumstances permitting him
to overcome these hurdles, and hence is not entitled to the relief he seeks. His petition for a writ
of habeas corpus is therefore dismissed.
Judgment consistent with this Entry shall now issue.
II.
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 Mosley has failed
to show that failed to show that reasonable jurists would find it Adebatable 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.
04/09/2014
Date: _________________

Distribution:
Corey Lamont Mosley
Wabash Valley Correctional Facility
Inmate Mail/Parcels
6908 S. Old U.S. Highway 41
Carlisle, IN 47838
Electronically Registered Counsel

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