BAILEY v. SUPERINTENDENT
ENTRY Discussing Petition for a Writ of Habeas Corpus and Denying Certificate of Appealability - Petition for writ of habeas corpus is therefore denied without the merits of his habeas claims being reached. Judgment consistent with this Entry shall now issue. The Court therefore denies a certificate of appealability (SEE ENTRY). Signed by Judge William T. Lawrence on 5/31/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
SUPERINTENDENT, Wabash Valley
Entry Discussing Petition for a Writ of Habeas Corpus
and Denying Certificate of Appealability
For the reasons explained in this Entry, Theron Bailey’s petition for a writ of habeas corpus
must be denied and the action dismissed with prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
I. The Habeas Petition
The pleadings and the expanded record show the following:
Bailey was convicted in Grant County of attempted murder, kidnapping, and related
offenses in 2008. His convictions were affirmed in Bailey v. State, 908 N.E.2d 712 (Ind.Ct.App.
2009) (Bailey I). The denial of Bailey’s petition for post-conviction relief was affirmed in Bailey
v. State, 35 N.E.3d 673 (Ind.Ct.App.), transfer denied, 38 N.E.3d 214 (Ind. 2015) (Bailey II).
Bailey filed no petition to transfer in Bailey I. In Bailey II, a petition to transfer was denied on
September 23, 2015.
The petitioner contends that his convictions were obtained in violation of his
constitutional rights in several respects. The respondent argues that the habeas petition must be
denied because it is untimely and because Bailey’s claims are procedurally defaulted. The Court
agrees that the petition is untimely, and thus the Court need not reach the issue of procedural
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. Williams v. Taylor, 529 U.S. 362, 404 (2000). “Congress enacted AEDPA to advance the
finality of criminal convictions.” Mayle v. Felix, 545 U.S. 644, 662 (2005). “To that end, it adopted
a tight time line, a one-year limitation.” Id. 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. 2015).
The dates pertinent to the application of the statute of limitations in the present case
are the following:
Bailey’s conviction became final on October 17, 2005. This was the day he could
have filed a petition to transfer with respect to Bailey I. Gonzalez v. Thaler, 132 S. Ct. 641,
653-54 (2012) (“[T]he judgment becomes final . . . when the time for pursuing direct review
. . . expires.”).
Bailey filed a petition for post-conviction relief 60 days later. His post-conviction
action was pending until November 4, 2009. He filed a second action for post-conviction
relief 106 days later on February 18, 2010. The second post-conviction relief action was
remained pending until June 11, 2015.
This action was filed 310 days later on April 16, 2016, having been signed by
Bailey two days previously.
The statute of limitations, however, expired on December 27, 2015.
The filing of this federal habeas action on April 14, 2015 occurred more than 3½
months after the statute of limitations expired.
Bailey suggests that he is entitled to a period of equitable tolling because occasional
lack of access to the prison law library and a lockdown impeded his access to the prison law library.
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)). Bailey has not shown that the circumstances he describes
were extraordinary or that he was prevented from making a timely filing.
Bailey also suggests that he is actually innocent and invokes the rule that actual
innocence, if proved, serves as a gateway through which habeas petitioners may pass when the
impediment to consideration of the merits of their constitutional claims is expiration of the statute
of limitations. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). However, the actual innocence
exception applies only in extraordinary cases. See Wertz v. Vaughn, 228 F.3d 178, 193 (3d Cir.
2000). To be credible, “a claim of actual innocence must be based on reliable evidence not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). There has been no showing of actual
innocence in this case. On the contrary, the evidence of Bailey’s culpability is substantial.
“[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, Bailey has encountered
the hurdle of the statute of limitations. He has not overcome this hurdle and his petition for writ of
habeas corpus is therefore denied without the merits of his habeas claims being reached.
Judgment consistent with this Entry shall now issue.
II. Certificate of Appealability
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 Bailey 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 denies a certificate of
IT IS SO ORDERED.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Electronically registered counsel
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
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