United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge
reasons explained in this Entry, Theron Bailey's petition
for a writ of habeas corpus must be denied and the action
dismissed with prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
The Habeas Petition
pleadings and the expanded record show the following:
Bailey was convicted in Grant County of attempted murder,
kidnapping, and related offenses in 2008. His convictions
were affirmed in Bailey v. State, 908 N.E.2d 712
(Ind.Ct.App. 2009) (Bailey I). The denial of
Bailey's petition for post-conviction relief was affirmed
in Bailey v. State, 35 N.E.3d 673 (Ind.Ct.App.),
transfer denied, 38 N.E.3d 214 (Ind. 2015)
(Bailey II). Bailey filed no petition to transfer in
Bailey I. In Bailey II, a petition to
transfer was denied on September 23, 2015.
petitioner contends that his convictions were obtained in
violation of his constitutional rights in several respects.
The respondent argues that the habeas petition must be denied
because it is untimely and because Bailey's claims are
procedurally defaulted. The Court agrees that the petition is
untimely, and thus the Court need not reach the issue of
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. Williams v. Taylor,
529 U.S. 362, 404 (2000). “Congress enacted AEDPA to
advance the finality of criminal convictions.”
Mayle v. Felix, 545 U.S. 644, 662 (2005). “To
that end, it adopted a tight time line, a one-year
limitation.” Id. 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. Bailey's conviction became final on October 17, 2005.
This was the day he could have filed a petition to transfer
with respect to Bailey I. Gonzalez v. Thaler, 132
S.Ct. 641, 653-54 (2012) (“[T]he judgment becomes final
. . . when the time for pursuing direct review . . .
b. Bailey filed a petition for post-conviction relief 60
days later. His post-conviction action was pending until
November 4, 2009. He filed a second action for
post-conviction relief 106 days later on February
18, 2010. The second post-conviction relief action was
remained pending until June 11, 2015.
c. This action was filed 310 days later on April 16,
2016, having been signed by Bailey two days previously.
d. The statute of limitations, however, expired on December
e. The filing of this federal habeas action on April 14, 2015
occurred more than 3½ months after the statute of
Bailey suggests that he is entitled to a period of equitable
tolling because occasional lack of access to the prison law
library and a lockdown impeded his access to the prison law
library. 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, ...