United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
J. McKINNEY, JUDGE
petitioner must overcome several procedural barriers before a
court will review the merits of a petition for a writ of
federal habeas corpus. As Justice O'Connor noted in
Daniels v. United States, “[p]rocedural
barriers, such as statutes of limitations and rules
concerning procedural default and exhaustion of remedies,
operate to limit access to review on the merits of a
constitutional claim.” 532 U.S. 374, 381 (2001).
See also United States v. Olano, 507 U.S. 725, 731
(1993). For the reasons explained in this Entry, the effort
Arthula Miller to navigate those barriers to challenge his
state conviction fails. His petition for a writ of habeas
corpus will therefore be denied. In addition, the Court finds
that a certificate of appealability should not issue. This
disposition is compelled by the following facts and
Marion County jury found Miller guilty of rape, criminal
confinement, criminal deviate conduct, burglary, intimidation
and battery. An executed sentence of 90 years was imposed.
Miller's direct appeal was dismissed on October 5, 2007,
so that he could utilize the Davis/Hatton procedure.
This procedure involves the termination or suspension of a
direct appeal that has already been initiated, upon appellate
counsel's motion for remand or stay, in order to allow a
post-conviction relief petition to be pursued in the trial
court. See Slusher v. State, 823 N.E.2d 1219, 1222
(Ind.Ct.App. 2005) (citing Hatton v. State, 626
N.E.2d 442, 443 (Ind. 1993); Davis v. State, 368
N.E.2d 1149, 1151 (1977)). If, after a full evidentiary
hearing, the petition for post-conviction relief is denied,
the appeal can be reinitiated. See Id. Under such
circumstances, the direct appeal and the post-conviction
relief appeal are consolidated. See Id. Therefore,
in addition to the issues initially raised in the direct
appeal, the issues litigated in the post-conviction relief
proceeding may also be raised. See Id. “This
way, a full hearing and record on the issues will be included
in the appeal.” Id.
March 7, 2011, Miller filed a petition for post-conviction
relief. That petition was denied on December 5, 2012. This
disposition was affirmed in Miller v. State, 997
N.E.2d 1184 (Ind.Ct.App. 2013) (Table). Transfer was denied
by the Indiana Supreme Court on September 25, 2014, and the
United States Supreme Court then denied Miller's petition
for certiorari review. 135 S.Ct. 1736 (2015). The filing of
the present action followed on May 3, 2016. Miller's
custodian has appeared in the action and argues, among other
matters, that the action was not timely filed.
an attempt to “curb delays, to prevent
‘retrials' on federal habeas, and to give effect to
state convictions to the extent possible under law, ”
Congress, as part of the Anti-Terrorism and Effective Death
Penalty Act of 1996, revised several of the statutes
governing federal habeas relief. See Williams v.
Taylor, 529 U.S. 362, 404 (2000). Along with triggering
dates not applicable here, “[u]nder 28 U.S.C. §
2244(d)(1)(A), a state prisoner seeking federal habeas relief
has just one year after his conviction becomes final in state
court to file his federal petition.” Gladney v.
Pollard, 799 F.3d 889, 894 (7th Cir. 2015).
dates pertinent to the application of the statute of
limitations in the present case are the following:
a. Miller's conviction became final on October 11, 2007.
This was the day his direct appeal was dismissed. See
Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012)
(“[T]he judgment becomes final . . . when the time for
pursuing direct review . . . expires.”).
b. Miller had one year, through October 11, 2008, in which to
either file his federal petition for writ of habeas corpus or
an action for state post-conviction relief if his statute of
limitations was to be tolled.
c. Miller's state post-conviction relief action was filed
on May 7, 2011, which was 877 days after his conviction
d. The state for post-conviction relief action remained
pending until April 6, 2015, at which time the United States
Supreme Court denied Miller's petition for a writ of
e. The federal habeas action was filed on May 3, 2016, which
was 393 days after the petition for a writ of certiorari
review was denied.
respondent is correct that this action was filed more than
eight and one-half years after Miller's conviction became
final and that Miller's state post-conviction relief
action was filed more than one year after his conviction
Miller suggests that he is entitled to a period of equitable
tolling because his attorney abandoned him following the
dismissal of his direct appeal. The limitations period may be
equitably tolled if a petitioner establishes
“‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing.”
Holland v. Florida,560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo,544 U.S. 408, 418
(2005)). Miller's argument of equitable tolling lacks
merit for two reasons. First, the three and one-half
year period between the dismissal of Miller's appeal and
the filing of his state post-conviction relief action shows
that Miller was not diligent in pursuing ...