United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
T. MOODY, UNITED STATES DISTRICT COURT JUDGE.
K. Chenoweth, by counsel, filed a habeas corpus petition
attempting to challenge his child molesting convictions and
40 year sentence by the Elkhart Superior Court under cause
number 20D03-0705-FA-28 on August 27, 2009. 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. Here, the petition
must be dismissed because it is untimely. Habeas corpus
petitions are subject to a strict one year statute of
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
28 U.S.C. § 2244(d). Chenoweth asserts:
This petition is timely under 28 U.S.C. § 2244(d) as it
was filed less than one year from the exhaustion of appeals
of Mr. Chenoweth's petition for post-conviction relief.
Rehearing by the Court of Appeals occurred on September 10,
2015, the Indiana Supreme Court denied transfer on December
3, 2015, and the U.S. Supreme Court denied certiorari on May
31, 2016. All of these denials have occurred within one year
of the filing of this petition.
(DE # 1 at 6.) Neither that response, nor anything else in
the petition indicates that his grounds are based on a newly
recognized Constitutional right or newly discovered evidence.
Neither has he indicated that a state-created impediment
prevented him from filing this petition sooner. Accordingly,
pursuant to 28 U.S.C. § 2244(d)(1)(A), the 1-year period
of limitation began on the date when the judgment became
final upon the expiration of the time for seeking direct
review of his conviction and sentence.
Indiana Supreme Court denied transfer in Chenoweth's
direct appeal on October 20, 2010. He did not file a petition
for certiorari to the United States Supreme Court.
Nevertheless, he had 90 days to do so and his conviction did
not become final until that time expired on January 18, 2011.
See Sup. Ct. R. 13(1) and Gonzalez v.
Thaler, 132 S.Ct. 641, 653-54 (2012) (“[T]he
judgment becomes final . . .when the time for pursuing direct
review . . . expires.”). The next day, the 1-year
period of limitation began. It expired a year later on
January 18, 2012. Because this petition was not filed until
October 5, 2016, it is nearly five years late.
filed a post-conviction relief petition on August 5, 2013.
Had he filed it on or before January 18, 2012, it would have
tolled the 1-year period of limitation. See 28
U.S.C. § 2244(d)(2). However, once the deadline expired,
filing the post-conviction relief petition did not
“restart” the federal clock, nor did it
“open a new window for federal collateral
review.” De Jesus v. Acevedo, 567 F.3d 941,
943 (7th Cir. 2009). Because the petition is untimely, it
must be dismissed. Though this might seem harsh, even
petitions that are one day late are time barred.
Foreclosing litigants from bringing their claim because they
missed the filing deadline by one day may seem harsh, but
courts have to draw lines somewhere, statutes of limitation
protect important social interests, and limitation periods
work both ways - you can be sure [the petitioner] would not
be pooh-poohing the prosecution's tardiness if [he] ...