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Phillips v. Superintendent

United States District Court, N.D. Indiana, LaFayette Division

February 16, 2017

James Phillips, Petitioner,
v.
Superintendent, Respondent.

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE.

         James Phillips, a pro se prisoner, filed a habeas corpus petition challenging his State court convictions and sentence by the Marion Superior Court. The Court of Appeals of Indiana, in its opinion affirming the denial of his post-conviction relief petition, explained his claims and the procedural history of this case:

Phillips was convicted of two counts of Class A felony attempted murder and one count of Class D felony resisting arrest. Phillips was also found to be a habitual offender and sentenced to an aggregate term of 100 years of imprisonment. Phillips subsequently filed a direct appeal raising several claims. In a memorandum decision, this court affirmed the trial court in all respects. Phillips v. State, 632 N.E.2d 388 (Ind.Ct.App. 1994) trans. denied.
On July 17, 1995, Phillips filed a PCR petition, which he later withdrew. Phillips pro se filed a new PCR petition in 2012, which he amended on October 29, 2014. In his petition, Phillips claims that his trial counsel was ineffective for failing to request that the trial judge recuse herself, and that his appellate counsel was ineffective for failing to raise the issue on appeal. Specifically, Phillips claims that the trial court judge should have recused herself because she was a deputy prosecutor involved in a previous case against him which formed the basis for his habitual offender enhancement.

         Phillips v. State, 47 N.E.3d 664, slip at ¶¶ 3-4 (Ind.Ct.App. 2016) (table).

         Habeas corpus petitions are subject to a strict one year statute of limitations and this petition is untimely:

(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), Phillips wrote:

Petitioner Post-Conviction Relief was denied on June 30, 2015 and the Supreme Court denied transfer on May 12, 2016. The time for filing Habeas Corpus Relief is one year from the Supreme Court denial of transfer from Petitioner's Post-Conviction Appeal. As a result only 165 days have elapsed and Petitioner placed the Petition in the Indiana ...

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