United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Alexander Lowry, a prisoner representing himself, filed a
habeas corpus petition to challenge his 1981 conviction for
double murder in Lake County Superior Court. After a jury
trial, the Lake Superior Court sentenced Mr. Lowry to a total
of 100 years' imprisonment. Mr. Lowry argues that: (1) he
was denied effective assistance of counsel; and (2) the trial
court violated his due process right by denying an expert
witness the opportunity to testify.
statute of limitations for habeas corpus cases is articulated
in 28 U.S.C. § 2244(d), which provides:
(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
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
Lowry alleges that his habeas petition is timely under 28
U.S.C. § 2244(d)(1)(B) because the state provided him
with ineffective counsel at trial. He doesn't explain how
that ineffective assistance of counsel prevented him from
filing an otherwise timely habeas petition in federal court.
Lowry also alleges that his habeas petition is timely under
28 U.S.C. § 2244(d)(1)(C) based on Brown v.
Brown, 847 F.3d 502 (7th Cir. 2017), cert.
denied, 137 S.Ct. 1547 (April 16, 2018). In
Brown, the court of appeals held that the
Martinez-Trevino doctrine applied to post-conviction
relief proceedings under Indiana law. Id. at
512-513. In other words, the court of appeals held that, for
Indiana prisoners, “a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.” Id. at 509.
Section 2244(d)(1)(C) doesn't apply to Brown
because no new constitutional right was recognized in
Brown and because Brown was decided by the
court of appeals rather than the Supreme Court. The Supreme
Court decided Martinez v. Ryan, 566 U.S. 1 (2012)
and Trevino v. Thaler, 569 U.S. 413 (2013), but
their holdings constitute “equitable rulings”
rather the recognition of a constitutional right.
Martinez v. Ryan, 566 U.S. at 16. Mr. Lowry
doesn't say his petition is timely based on a recently
discovered factual predicate. Only 28 U.S.C. §
2244(d)(1)(A) might apply to his claims.
28 U.S.C. § 2244(d)(1)(A), the one-year period of
limitation began on the day judgment became final upon the
expiration of the time for seeking direct review of his
conviction and sentence. The Indiana Supreme Court affirmed
Mr. Lowry's conviction on direct appeal on October 27,
1982. Lowry v. Indiana, 440 N.E.2d 1123 (Ind. 1982).
This time limit for filing habeas corpus petitions was
enacted into law on April 24, 1996. Because Mr. Lowry's
conviction became final before that date, his conviction
became final for the purposes of section 2244(d)(1)(A) on
April 24, 1996. Newell v. Hanks, 283 F.3d 827, 832
(7th Cir. 2002). The deadline expired one year later, on
April 24, 1997. This habeas corpus petition, signed May 24,
2018, is more than 21 years late.
Lowry subsequently filed other challenges to his conviction
in state court, but those filings neither restarted the
federal limitations period nor “open[ed] a new window
for federal collateral review.” De Jesus v.
Acevedo, 567 F.3d 941, 943 (7th Cir. 2009). Mr.
Lowry's petition is untimely and must be dismissed.
Rule 11 of the Rules Governing Section 2254 Cases, the court
must consider whether to grant a certificate of
appealability. When the court dismisses a petition on
procedural grounds, the determination of whether a
certificate of appealability should issue has two components.
Slack v. McDaniel, 529 U.S. 473, 484-485 (2000).
First, the petitioner must show that reasonable jurists would
find it debatable whether the court was correct in its
procedural ruling. Id. at 484. If the petitioner
meets that requirement, then he must show that reasonable
jurists would find it debatable whether the petition states a
valid claim for the denial of a constitutional right.
Id. As already explained, this petition is untimely.
Because there is ...