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Shipp v. Zatecky

United States District Court, S.D. Indiana, Indianapolis Division

January 26, 2015

MARQUIS SHIPP, Petitioner,
v.
DUSHAN ZATECKY, Respondent.

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

TANYA WALTON PRATT, District Judge.

For the reasons explained in this Entry, the petition of Marquis Shipp 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.

The Petition for Writ of Habeas Corpus

Marquis Shipp ("Shipp") was convicted in 2006 in an Indiana state court of dealing in cocaine and possession of cocaine. Shipp's direct appeal was resolved by the Indiana state courts, and his conviction became final after the April 23, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA").

In an attempt to Acurb delays, to prevent retrials' on federal habeas, and to give effect to state convictions to the extent possible under law, @ Congress, as part of AEDPA, revised several of the statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). One such revision amended 28 U.S.C. § 2244 to include a one-year statute of limitations for state prisoners seeking federal habeas relief. The statute of limitations applicable to federal habeas corpus actions "was Congress' primary vehicle for streamlining the habeas review process and lending finality to state convictions." Walker v. Artuz, 208 F.3d 357, 361 (2d Cir. 2000).

A conviction is "final" when the time for seeking direct review from the judgment affirming the conviction has expired. Griffith v. Kentucky, 479 U.S. 314, 321 & n.6 (1987). The Indiana Supreme Court denied Shipp's petition to transfer on November 8, 2007.

Shipp's habeas petition was filed on November 7, 2013, more than four years after the statute of limitations expired. His habeas petition was not timely filed. The fact that Shipp's new post-conviction petition in Indiana state court was filed on June 12, 2009, is of no consequence here. Teas v. Endicott, 494 F.3d 580 (7th Cir. 2007)(the fact that the state courts entertained a collateral attack on prisoner's conviction more than one year after the expiration of the one year time limit does not "re-start" the statute of limitations under 28 U.S.C. § 2244(d)). None of his other arguments hold water in light of the extended delay between the date his conviction became final and the filing of the habeas petition. Shipp neither faced extraordinary circumstances standing in the way of his habeas filing nor exercised due diligence in filing the petition. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

"[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, Shipp has encountered the hurdle produced by the one-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 decision 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.

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 Shipp has failed to show that reasonable jurists would find it Adebatable 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 appealability.

IT IS SO ORDERED.


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