United States District Court, S.D. Indiana, Terre Haute Division
ENTRY AND ORDER DISMISSING ACTION
JANE MAGNUS-STINSON, District Judge.
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.
The State's first argument is that Mosley's habeas petition was not timely filed.
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 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 ...