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Gibson v. Superintendent

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

August 3, 2017

LIONEL GIBSON, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE

         This matter is before the Court on the amended petition under 28 U.S.C. Paragraph 2254 and 2241 for Writ of Habeas Corpus filed by Lionel Gibson, a prisoner without a lawyer, on June 6, 2017. ECF 5. For the reasons set forth below, the Court DENIES habeas corpus relief pursuant to Section 2254 Habeas Corpus Rule 4 because the petition is untimely, DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11, and DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). The clerk is DIRECTED to close this case.

         DISCUSSION

         Gibson's amended habeas corpus petition attempts to challenge his conviction and 90 year sentence for murder and attempted murder by the Lake County Superior Court in case 46G03-9703-CF-00043 on January 8, 1999. ECF 5.

         Habeas Corpus petitions are subject to a strict one year statute of limitations.[1] There are four possible dates from which the limitation period can begin to run. Nothing in this response - nor anything else in the petition - indicates that State action impeded him from filing a habeas corpus petition sooner or that his claims are based on a newly recognized constitutional right or newly discovered facts. Therefore 28 U.S.C. § 2244(d)(1)(B), (C), and (D) are not applicable here. Thus the limitation period began to run pursuant to 28 U.S.C. § 2244(d)(1)(A) when the conviction became final upon the expiration of the time for filing a direct appeal. In this case, Gibson took a direct appeal to the Court of Appeals of Indiana which affirmed his conviction on February 29, 2000. ECF 5 at 1. He did not petition for transfer to the Indiana Supreme Court and his time to do so expired March 30, 2000. See Ind. R. App. P. 57(C). The last day Gibson had to file a timely habeas corpus petition in federal court was March 30, 2001. However, his original petition was not signed until March 28, 2017. Thus, it is 16 years late.

         In response to question 9 (which asked him to explain why the petition is timely), Gibson argues that his petition is timely because he filed the petition within one year of the Indiana Supreme Court's denial of his petition to transfer his “Motion to Correct Erroneous Sentence.” ECF 5 at 2, 8. On April 6, 2006, Gibson filed a post-conviction relief petition with the State court. ECF 5 at 2. This petition was denied on August 6, 2008. Id. He did not appeal. Id. He then filed a “Motion to Correct Erroneous Sentence” with the trial court on December 10, 2015. After his motion was denied by the trial court and court of appeals, Gibson sought to transfer to the Indiana Supreme Court. Id. The Indiana Supreme Court denied transfer on November 3, 2016. Id. However, by the time Gibson filed his post-conviction relief petition, his limitations period to file in federal court had already expired. Once the limitations period expired, filing another 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).

         Pursuant to Section 2254 Habeas Corpus Rule 11, a court must consider whether to grant or deny a certificate of appealability. To obtain a certificate of appealability when the court dismisses a petition on procedural grounds, the petitioner must show that reasonable jurists would find it debatable (1) whether the court was correct in its procedural ruling and (2) whether the petition states a valid claim for denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, there is no basis for finding that jurists of reason would debate the correctness of this procedural ruling. Therefore there is no basis for encouraging Gibson to proceed further. Thus a certificate of appealability must be denied. For the same reasons, he may not appeal in forma pauperis because an appeal could not be taken in good faith.

         CONCLUSION

         For the reasons set forth above, the Court DENIES habeas corpus relief pursuant to Section 2254 Habeas Corpus Rule 4 because the petition is untimely, DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11, and DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). The clerk is DIRECTED to close this case.

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Notes:

[1] The statute of limitations for habeas corpus cases is set out in 28 U.S.C. § 2244(d) which provides that:

(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 ...

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