United States District Court, N.D. Indiana, Fort Wayne Division
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 Lance Scott Boutte', a pro se prisoner, on October 3, 2013. For the reasons set forth below, the court DISMISSES this habeas corpus petition because it is untimely and DENIES a certificate of appealability.
Lance Scott Boutte', a pro se prisoner, signed this habeas corpus petition and placed it into the prison mailing system on August 29, 2013. He is attempting to challenge his convictions for voluntary manslaughter and aggravated battery for which he was sentenced to a total of 55 years by the Allen Superior Court under cause number 02D04-0003-CR-151 on July 6, 2001. Boutte' pled guilty and did not file a direct appeal, but he has nevertheless made numerous efforts over the years to challenge these convictions. The respondent argues that the petition is untimely. Boutte' argues that he is entitled to equitable tolling.
Habeas Corpus petitions are subject to a strict one year statute of limitations. 28 U.S.C. § 2244(d) provides four possible dates from which the limitation period begins to run.
(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.
The respondent argues that the court should apply § 2244(d)(1)(A) and calculate the 1-year period of limitation starting from August 6, 2001, because that is when the conviction became final upon the expiration of the time for filing a direct appeal. Boutte' does not explicitly dispute the use of that date nor assert the applicability of any of the other three possible starting dates. Rather, he argues that:
Under equitable tolling - I was just ruled stable on January 26, 2012 - competent to be responsible for my actions. Belated Appeal December 7, 2011. They stated reducing medication in 2010, because I was over medicated from 200 mg a month injection to 25 mg a month. Haven't had too many problems so far. Still adjusting as necessary under ...