United States District Court, N.D. Indiana, South Bend Division
TROY E. PHILLIPS, Petitioner
OPINION AND ORDER
L. Miller, Jr. Judge United States District Court.
Phillips, a prisoner without a lawyer, filed a habeas corpus
petition to challenge his conviction and 40-year sentence for
robbery, possession of a firearm as a serious violent felon
and habitual offender by the Marion County Superior Court on
January 16, 2004, under cause number 49G01-0302-FB-031230.
Habeas corpus petitions are subject to a strict one-year
statute of limitations. The limitation period can begin to run
from any of four possible dates. Nothing in Mr.
Phillips's 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, and 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 time to pursue direct review.
Phillips didn't file any state court challenge to his
conviction, so his conviction became final for purposes of 28
U.S.C. § 2244(d)(1)(A) when the time for filing an
appeal expired on February 16, 2004. See Ind. App.
R. 9(A) (appeal must be filed with the Indiana Court of
Appeals within 30 days of trial court's judgment);
Gonzalez v. Thayer, ___ U.S. ___, 132 S.Ct. 641,
653-654 (2012) (when a state prisoner does not complete all
levels of direct review, his conviction becomes final for
purposes of 28 U.S.C. § 2244(d)(1)(A) when the time for
seeking such review expires). Absent any period of tolling,
Mr. Phillips's federal limitations period began to run on
February 17, 2004 and expired one year later, on February 16,
2005. When he signed his petition on August 13, 2017, he was
more than 12 years late.
response to question 9 (which asked him to explain why the
petition is timely), Mr. Phillips argues that his habeas
petition is timely because he exhausted his administrative
remedies through the Indiana Department of Correction
grievance process. To satisfy the exhaustion requirement in
this case, Mr. Phillips had to pursue a State court challenge
to his conviction. See 28 U.S.C. § 2244(d). His
filing of prison grievances did not toll his limitations
period to file in federal court. See Lewis v.
Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004) (a
habeas petition must “assert his federal claim through
one complete round of state-court review, either on direct
appeal of his conviction or in post-conviction proceedings.
This means that the petitioner must raise the issue at each
and every level in the state court system, including levels
at which review is discretionary rather than
mandatory”). Mr. Phillips's petition must be denied
because it is untimely.
Section 2254 Habeas Corpus Rule 11, the court must consider
whether to grant or deny a certificate of appealability. To
obtain a certificate of appealability when a petition is
dismissed 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). There is no basis for finding that jurists
of reason would debate the correctness of today's
procedural ruling, so a certificate of appealability must be
denied. For the same reasons, Mr. Phillips may not appeal in
forma pauperis because an appeal couldn't be taken in
these reasons, the court:
(1) DENIES the petition (ECF 1) pursuant to Section 2254
Habeas Corpus Rule 4 because it is untimely;
(2) DENIES Mr. Phillips a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11; and
(3) DENIES Mr. Phillips leave to appeal in forma pauperis
pursuant to 28 U.S.C. § 1915(a)(3).
clerk shall enter judgment accordingly.
 The statute of limitations for habeas
corpus cases is set out in 28 U.S.C. § 2244(d) which