United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
reasons explained in this Entry, the petition of Elsor
Matthews for a writ of habeas corpus will be denied. In
addition, the Court finds that a certificate of appealability
should not issue.
The Petition for Writ of Habeas Corpus
was convicted in Grant County in 2004 based on his guilty
plea to intimidation, invasion of privacy, battery, and
resisting law enforcement. In seeking federal habeas corpus
relief, he presents three claims: (1) trial counsel was
ineffective for failing establish a factual basis during his
guilty plea; (2) the trial court improperly accepted his
guilty plea; and (3) trial counsel failed to properly
investigate Matthews's case to properly advise him to
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, “Procedural
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). Accordingly, “when examining a habeas corpus
petition, the first duty of a district court . . . is to
examine the procedural status of the cause of action.”
United States ex rel. Simmons v. Gramley, 915 F.2d
1128, 1132 (7th Cir. 1990).
Statute of Limitations
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 (“AEDPA”), revised several of
the statutes governing federal habeas relief. Williams v.
Taylor, 529 U.S. 362, 404 (2000). One such provision
a state prisoner has one year to file a federal petition for
habeas corpus relief, starting from “the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.”
Wood v. Milyard, 132 S.Ct. 1826, 1831 (2012)
(quoting 28 U.S.C. § 2244(d)(1)(A)); see also
Gladney v. Pollard, 799 F.3d 889, 894 (7th Cir. 2015).
' 2244(d)(1) of the AEDPA, the statute of limitations for
' 2254 petitions is one year. See 28 U.S.C.
§ 2244(d)(1)(A)-(D). Pursuant to 28 U.S.C. §
2244(d)(2), the running of this one-year period is tolled
while a “properly filed” application for
post-conviction relief is pending in state court. See
Gray v. Briley, 305 F.3d 777, 778-79 (7th Cir. 2002).
to exceptions not applicable here, Matthews had one (1) year
from the date his conviction became final to file a timely
petition for writ of habeas corpus. Matthews was sentenced on
January 9, 2004. He did not file an appeal. His conviction
became final when the time for pursuing a direct appeal
expired. Gonzalez v. Thaler, 132 S.Ct. 641, 653-54
(2012). That date was February 8, 2004. His next activity in
the state courts was the filing of an action for
post-conviction relief on October 19, 2012. This was an
interval of eight years, eight months, and ten days. Applying
the prison mailbox rule, Matthews's habeas petition was
filed on February 2, 2017. This was one week short of 13
years after his conviction became final and one week short of
12 years after the statute of limitations had expired.
limitations period is tolled during the pendency of a
properly filed application for state post-conviction relief.
See 28 U.S.C. § 2244(d)(2); Ray v.
Clements, 700 F.3d 993, 1003 (7th Cir. 2012). This
tolling, however, has no effect where, as in Matthews's
case, the post-conviction relief action was filed long after
the statute of limitations had expired. See Gladney,
799 F.3d at 893 (noting the petitioner's habeas petition
was untimely when his first state post-conviction petition
was filed after the one-year limitations period had expired);
Teas v. Endicott, 494 F.3d 580 (7th Cir. 2007) (the
fact that the state courts entertained a collateral attack on
prisoner's conviction more than one year after the
expiration of the one year time limit does not
"re-start" the statute of limitations under 28
U.S.C. § 2244(d)); Fernandez v. Sternes, 227
F.3d 977, 978-79 (7th Cir. 2000) (explaining that it is
illogical to toll a limitations period that has already
passed). The filing of the Matthews's petition for
post-conviction relief therefore has no effect on the
computation of the statute of limitations and does not rescue
Matthews's habeas petition from being woefully untimely.
addition to statutory tolling, the running of the statute of
limitations is subject to equitable tolling, which is
permitted if extraordinary circumstances beyond the
petitioner's control prevented the timely filing of his
habeas petition. See Holland v. Florida, 130 S.Ct.
2549, 2560 (2010); see also McQuiggin v. Perkins,
133 S.Ct. 1924, 1931 (2013). A petitioner seeking equitable
tolling “bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way.”
Holland, 130 S.Ct. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); see also
Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013).
There were no extraordinary circumstances which prevented
Matthews from filing a timely federal petition for writ of
habeas corpus. See Gray v. Zatecky, No. 15-2482,
2017 WL 3274347, at *3 (7th Cir. Aug. 2, 2017).
ADEPA's statute of limitations does not apply to habeas
petitions that make “a credible showing of actual
innocence.” McQuiggin v. Perkins, 133 S.Ct.
1924, 1931 (2013). To make such a showing, a petitioner must
present “new reliable evidence--whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not
presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995). The petitioner must show that, if the new
evidence had been presented at trial, “it is more
likely than not that ...