United States District Court, N.D. Indiana, Hammond Division Lafayette
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Petition under 28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in State Custody filed by David Leroy Hale, a pro se prisoner, on June 9, 2014. For the reasons set forth below, the court DISMISSES this habeas corpus petition because it is untimely and DENIES a certificate of appealability.
David Leroy Hale, is challenging his guilty plea and 40 year sentence for Voluntary Manslaughter by the Tippecanoe Superior Court under cause number 79D02-0603-MR-1 on September 12, 2006. Hale filed a direct appeal which concluded when the Indiana Supreme Court denied his petition to transfer on June 7, 2007. Hale v. State, 869 N.E.2d 460 (Ind. 2007). He did not file a petition for certiorari to the United States Supreme Court and the deadline for doing so expired on September 5, 2007. Then, 294 days later, he filed a post-conviction relief petition on June 26, 2008. His postconviction relief proceeding ended when the Indiana Supreme Court denied transfer on March 9, 2012. Hale v. State, 963 N.E.2d 1122 (Ind. 2012). He did not file a petition for certiorari to the United States Supreme Court. Then, 387 days later, he filed a motion for modification on April 1, 2013, which was denied on May 20, 2013. He did not appeal the denial of that motion. This habeas corpus petition was signed and mailed, 372 days later, on May 28, 2014.
Pursuant to 2254 Habeas Corpus Rule 4, the Court must review a habeas corpus petition and dismiss it if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief...." Because this petition is untimely, it must be dismissed.
Habeas Corpus petitions are subject to a strict one year statute of limitations.
(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 ...