United States District Court, N.D. Indiana, South Bend Division
DEWAYNE A. DUNN, Petitioner,
OPINION AND ORDER
P. SIMON JUDGE.
A. Dunn, a prisoner without a lawyer, filed a habeas corpus
petition attempting to challenge his conviction and sentence
for murder imposed by the Elkhart Circuit Court on March 17,
2011. (ECF 1.) However, habeas corpus petitions are subject
to a strict one year statute of limitations. There are four
possible dates from which the limitation period begins to
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
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d).
9 of the form habeas petition asked Dunn to explain why this
petition is timely. In response, he wrote, “I have
filed in a timely manner, and the one year period has been
meet [sic].” (ECF 1 at 5.) Neither this answer nor the
claims raised in the petition indicate that they are based on
newly discovered evidence or a newly recognized
constitutional right. Neither is there any indication that a
state-created impediment prevented him from filing his
federal petition on time. Accordingly, pursuant to 28 U.S.C.
§ 2244(d)(1)(A), the 1-year period of limitation began
on the date when the judgment became final upon the
expiration of the time for seeking direct review of his
conviction and sentence.
Dunn was found guilty and sentenced on March 17, 2011. (ECF 1
at 1.) He filed a direct appeal, and the Indiana Court of
Appeals affirmed his conviction on December 22, 2011.
Id. He filed a petition to transfer with the Indiana
Supreme Court, but it was denied on February 13,
2012. Dunn v. State of Indiana, No.
20A05-1103-CR- 00160, order denying petition to transfer
(Ind.Ct.App. Feb. 13, 2012). Dunn did not file a petition for
certiorari to the United States Supreme Court. Nevertheless,
he had 90 days to do so and his conviction did not become
final until that time expired on May 14, 2012. See
Sup. Ct. R. 13(1) and Gonzalez v. Thaler, 565 U.S.
134, 150 (2012). (“[T]he judgment becomes final . .
.when the time for pursuing direct review . . .
expires.”). The next day, the 1-year period of
limitation began. It expired a year later on May 14, 2013.
Because this petition was not filed until March 12, 2018, it
is nearly five years late.
filed a state post-conviction relief petition on January 19,
2017, but by the time he filed that petition, his time to
seek habeas relief in federal court had already lapsed. Once
the deadline expires, filing a post-conviction relief
petition does not "restart" the federal clock, or
"open a new window for federal collateral review."
De Jesus v. Acevedo , 567 F.3d 941, 943 (7th Cir.
2009). As a result, this petition is untimely.
to Rule 11 of the Rules Governing Section 2254 Cases, the
court must either issue or deny a certificate of
appealability in all cases where it enters a final order
adverse to the petitioner. To obtain a certificate of
appealability, the petitioner must make a substantial showing
of the denial of a constitutional right by establishing
“that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quote marks and citation omitted). As
explained, the petition was not timely filed. Nothing before
the court suggests that ...