SULLIVAN v. SUPERINTENDENT

Filing 10

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - The petition of Richard Sullivan challenging his conviction for child molesting as a Class A felony is barred by the applicable statute of limitations a nd is therefore denied. His motion for appointment of counsel [dkt 9 ] is denied because that step is not in the interests of justice in light of Sullivan's familiarity with his claims and with the course of proceedings in the Indiana state co urts and in this Court. In this case, Sullivan has encountered the hurdle produced by the 1-year statute of limitations. He has not shown the existence of circumstances permitting him to overcome this hurdle, and hence is not entitled to the reli ef he seeks. His petition for a writ of habeas corpus is therefore dismissed as untimely without a decisions being made as to the merits of his claims. Judgment consistent with this Entry shall now issue. The court declines to issue a certificate of appealability. (See Entry.) Copy to petitioner via US Mail. Signed by Judge William T. Lawrence on 3/6/2017. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

RICHARD SULLIVAN,

)
)
Petitioner,
)
vs.
)
)
SUPERINTENDENT, Wabash Valley Correctional )
Facility,
)
)
Respondent.
)

No. 2:16-cv-440-WTL-MJD

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
The petition of Richard Sullivan challenging his conviction for child molesting as a Class
A felony is barred by the applicable statute of limitations and is therefore denied. His motion for
appointment of counsel [dkt 9] is denied because that step is not in the interests of justice in light
of Sullivan’s familiarity with his claims and with the course of proceedings in the Indiana state
courts and in this Court. The referenced disposition of the habeas petition is compelled by the
following facts and circumstances:
1.

An Indiana jury found Sullivan guilty of both Class A felony child molesting and

Class C felony child molesting. He was sentenced only on the former on October 13, 2010.
2.

Sullivan’s conviction was affirmed in Sullivan v. State, 951 N.E.2d 311

(Ind.Ct.App. 2011). The Indiana Supreme Court denied Sullivan’s petition to transfer on
September 29, 2011.
3.

Sullivan filed a petition for post-conviction relief on November 1, 2011. This

petition was denied on February 26, 2014. On May 2, 2014, the Indiana Court of Appeals dismissed
Sullivan’s post-conviction appeal with prejudice because Sullivan had filed an appeal with the

wrong court and had not corrected that mistake in time.
4.

On August 24, 2014, Sullivan filed a petition with the trial court filed a verified

petition for permission to file a belated notice of appeal. This petition was denied on September
30, 2014.
5.

On August 18, 2015, Sullivan filed a petition for leave to file a successive petition

for post-conviction relief. The Indiana Court of Appeals denied that petition on October 9, 2015.
6.

This action followed, having been filed with the clerk on November 22, 2016. The

respondent has appeared in the action and argues that it was not timely filed.
7.

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). 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).
8.

The following dates are material to computation and application of the statute of

limitations in Sullivan’s case:
a.
Sullivan’s conviction became final on December 29, 2011. This was the last day on
which he could have filed a timely request for certiorari review with the United States
Supreme Court. Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012) (“[T]he judgment
becomes final . . . when the time for pursuing direct review . . . expires.”); Jimenez v.
Quarterman, 555 U.S. 113, 120 (2009) (a conviction becomes final when “the time for
filing a certiorari petition expires”).
b.
Sullivan’s petition for post-conviction relief was filed on November 1, 2011 and
was pending at the time his conviction became final. His petition for post-conviction relief
remained pending until May 2, 2014. “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)(2). Accordingly, the statute of limitations began to run
on May 3, 2014 and continued to run until it expired one year later, May 4, 2015.
c.
The present petition is deemed to have been filed on November 17, 2016. This was
the postage cancellation date on the envelope in which the habeas petition was mailed to
the clerk; the habeas petition itself is unsigned and undated. This was more than 18 months
after the statute of limitations expired on May 4, 2015.
d.
Sullivan has offered no reason why the running of the statute of limitations should
not be computed as described above and no reason why his petition for writ of habeas
corpus should not be found to have been filed long after the statute of limitations expired.
9.

“[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, Sullivan has encountered
the hurdle produced by the 1-year statute of limitations. He has not shown the existence of
circumstances permitting him to overcome this hurdle, and hence is not entitled to the relief he
seeks. His petition for a writ of habeas corpus is therefore dismissed as untimely without a
decisions being made as to the merits of his claims. See Bachman v. Bagley, 487 F.3d 979, 982
(6th Cir. 2007). Judgment consistent with this Entry shall now issue.
10.

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the court finds

that Sullivan 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 declines to issue a certificate of appealability.
IT IS SO ORDERED.
_______________________________

Date: 3/6/17
Distribution:
Eric Parker Babbs
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

RICHARD SULLIVAN
885092
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838