United States District Court, S.D. Indiana, Terre Haute Division
MYRON L. TODD, Petitioner,
WARDEN, Wabash Valley Correctional Facility, Respondent.
Jane Magnus-Stinson, Chief Judge
Discussing Petition for a Writ of Habeas Corpus
Myron Todd is serving a sentence for 2009 Elkhart County
convictions for two counts of burglary resulting in bodily
injury and one count of burglary. He brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The respondent has filed a return to the order to show cause
arguing that Todd's petition is barred by the applicable
statute of limitations and Todd has not replied. For the
reasons that follow, the petition must be dismissed.
Factual and Procedural Background
March 6, 2009, Todd pleaded guilty to two counts of burglary
resulting in bodily injury, two counts of robbery, and one
count of burglary. On April 6, 2009, the trial court merged
the robbery counts into the burglary resulting in bodily
injury convictions and sentenced him to 40 years on each of
the burglary resulting in bodily injury convictions, which
were ordered to run concurrently to one another. The trial
court sentenced Todd to 10 years on the burglary conviction
which was ordered to ruin consecutively to his other
convictions for an aggregate sentence of 50 years.
failed to timely appeal and his request to file a belated
appeal was denied by the trial court. On August 13, 2009,
Todd, through counsel, filed a petition for post-conviction
relief. On July 28 2011, while his petition for
post-conviction relief was pending, pursuant to a motion for
modification, the trial court modified Todd's sentence to
35 years executed in the Department of Correction with 15
years suspended to probation. On September 1, 2011, Todd,
through counsel, withdrew his petition for post-conviction
relief without prejudice.
April 4, 2012, Todd, pro se, filed a petition for
post-conviction relief. On November 7, 2014, after a hearing,
the trial court denied Todd's petition for
post-conviction relief. He did not appeal.
filed a petition for a writ of habeas corpus in this court on
May 12, 2017. No. 2:17-cv-218-WTL-DKL. Because Todd was
confined at that time in the Northern District of Indiana and
because his convictions were in the Northern District, that
petition was transferred to the United States District Court
for the Northern District of Indiana on May 15, 2017. After
the transfer to the Northern District, that court determined
that Todd sought both habeas relief and to pursue civil
rights claims. Todd v. Andrew, et al.,
3:17-cv-381-JD-MGG (N.D. Ind. July 18, 2017). That court
therefore gave him the opportunity to submit either a habeas
petition or a section 1983 complaint. Id. That case
is now proceeding as a civil rights case.
now incarcerated at the Wabash Valley Correctional Facility,
which is in this District. On August 17, 2017, Todd filed
this petition for a writ of habeas corpus in this Court. The
petition was not dated.
support of his petition for a writ of habeas corpus, Todd
argues that he was wrongfully convicted. The respondent
contends that Todd's petition is barred by AEDPA's
one-year 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, revised several of the statutes
governing federal habeas relief. 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).
conviction and sentence became final when the time to file a
notice of appeal of his conviction and sentence passed. 28
U.S.C. § 2244(d)(1)(A). Because he was sentenced on
April 6, 2009, the time to appeal expired on May 6, 2009.
Ind.App. Rule 9. Any petition for a writ of habeas corpus,
therefore was due one year later, on May 6, 2010. While a
pending petition for post-conviction relief may toll the
statute of limitations, Todd filed his petition for
post-conviction relief on August 13, 2009, and withdrew it on
September 1, 2011. The statute of limitations was therefore
tolled between August 13, 2009, and September 1, 2011, but
Todd did not file his petition for a writ of habeas corpus
until many years later, on August 17, 2017.
addition, Todd's sentence was modified on July 28, 2011.
Even if this restarted the statute of limitations to file a
habeas petition, his petition would still be untimely. Like
the initial conviction and sentence, the ruling on the
sentence modification became final thirty days later, on
August 27, 2011, when the time to file an appeal expired.
Todd therefore would have had until August 27, 2012, to file
a petition for a writ of habeas corpus. While Todd withdrew
his original petition for post-conviction relief after he
received a sentence modification, he filed another petition
221 days after the sentence modification became final, on
April 4, 2012. That petition was denied on November 7, 2014.
He would have had 144 days, or until March 31, 2015, to file