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Stork v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

April 16, 2014

FRANK EDWARD STORK, Petitioner,
v.
SUPERINTENDENT, Respondent.

OPINION and ORDER

JAMES T. MOODY, District Judge.

Frank Edward Stork, a pro se prisoner, filed a petition under 28 U.S.C. § 2254 challenging his 2009 conviction in St. Joseph County, Indiana, for resisting law enforcement. (DE #1.) The court is obligated to review the petition and dismiss it if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief...." RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES.

According to the petition and attachments, Stork pled guilty to resisting law enforcement and in April 2009 was sentenced to two years in prison.[1] (DE #1 at 1.) He did not pursue a direct appeal. ( Id. ) In July 2011, he filed a state petition for postconviction relief. ( Id. at 2.) His petition was denied. ( Id. ) He attempted to file a belated appeal, but the Indiana Court of Appeals dismissed his appeal as untimely in July 2013. ( Id. ) He later sought to file a petition to transfer to the Indiana Supreme Court, but his filings were returned to him due to various procedural deficiencies. ( Id. ; DE #3 at 62-66.)

On March 24, 2014, Stork tendered his federal petition to prison officials for mailing. (DE #1 at 6.) His petition is somewhat difficult to parse, but it can be discerned that he is claiming his guilty plea was not knowing and voluntary, and that he received ineffective assistance of counsel in connection with the plea agreement.[2] (DE #1 at 3-5.)

Stork's petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, habeas petitions are subject to a one-year statute of limitations, set forth as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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).

Upon review, Stork's claims do not implicate newly discovered evidence or a newly recognized constitutional right, nor does he claim that a state-created impediment prevented him from filing his federal petition on time. Accordingly, 28 U.S.C. § 2244(d)(1)(A) applies. Stork was sentenced in April 2009, and he did not pursue a direct appeal. (DE #1 at 1.) His conviction became final for purposes of Section 2244(d)(1)(A) when the time for seeking review in the Indiana Court of Appeals expired 30 days later. See IND. APP. R. 9(A) (notice of appeal must be filed within 30 days of the trial court's judgment); Gonzalez v. Thaler, 132 S.Ct. 641, 655-56 (2012) (when a habeas petitioner does not complete all levels of state review, his conviction becomes final for purposes of AEDPA when the time for seeking further review expires).

Stork had one year from that date, or until May 2010, to file a timely federal petition. He did not do so, and instead waited until March 2014 to file the present petition. (DE #1 at 6.) Although he sought state post-conviction relief in July 2011, the federal deadline had already expired when he filed his state petition. Thus, the state post-conviction proceeding did not toll or otherwise extend the federal deadline.[3] De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) ("a ...


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