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Ward v. Superintendent

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

January 18, 2017

JERRY L. WARD, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          JAMES T. MOODY, JUDGE

         This case is closed. It was dismissed without prejudice after the deadline for filing an amended habeas corpus petition expired. (DE # 4.) However, the court has now received an amended petition from Jerry L. Ward, a pro se prisoner. (DE # 6.) Delivery was delayed because Ward sent it in the mail - rather than filing it electronically from the Westville Correctional Facility law library. Had he done so, the court would have received it well before the deadline, rather than well after it. Nevertheless, because it was mailed before the deadline, the court will vacate the dismissal order and review the amended petition. See Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001).

         Ward pleaded guilty and was given an 8 year sentence on December 8, 2011, by the Cass County Circuit Court under cause number 09C01-1006-FC-12. He is raising only one ground in this habeas corpus petition. He argues that he was illegally required to serve 2 years on parole. His parole began on February 25, 2014. He argues that his parole should have ended on February 25, 2015.

         Habeas corpus petitions are subject to a strict one year statute of limitations. Without resolving precisely when the limitation period should begin in this case, it is clear that this petition is untimely under even the most generous possibility.

(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).

         In response to question 16 asking him to explain why the petition is timely (which includes the text of the statute quoted above), Ward wrote, “I was sentenced on 12/08/2011, and I served almost 4 years before I was rolled over onto my new sentence, and then released to parole thereafter. I was just recently made aware of the rules of parole that show I was illegally placed on parole due to serving out my first sentence then serving a new sentence, then being placed on parole for the first sentence.” (DE # 6 at 5.)

         Neither that response - nor anything else in the petition - indicates that this claim is based on a newly recognized Constitutional right or that a state-created impediment prevented him from filing this petition sooner. Therefore 28 U.S.C. § 2244(d)(1)(B) and (C) are not applicable to this case. That leaves 28 U.S.C. § 2244(d)(1)(A) and (D).

         If 28 U.S.C. § 2244(d)(1)(A) applies, then 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. Here, Ward was sentenced on December 8, 2011. He did not file a direct appeal and the deadline for doing so expired on January 9, 2012. See Indiana Rules of ...


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