United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge
reasons explained in this Entry, petitioner Dustin
Chadwick's petition for a writ of habeas corpus must be
denied and the action dismissed with prejudice. In addition,
the court finds that a certificate of appealability should
Petition for Writ of Habeas Corpus
petitioner is a state prisoner currently on parole in the
Indianapolis parole district. As relevant here, the
petitioner was found guilty of Class C felony child molesting
in Marion Superior Court, No. 49G03-0501-PC-004855. See
Chadwick v. State, 862 N.E.2d 726, 2007 WL 686675, *1
(Ind.Ct.App. 2007). The Indiana Court of Appeals affirmed his
conviction on March 8, 2007, and the petitioner did not file
a petition to transfer with the Indiana Supreme
petitioner filed a petition for post-conviction relief in
state court on April 29, 2008. He moved to withdraw his
petition without prejudice, and that motion was granted on
July 8, 2010. The petitioner renewed his petition for
post-conviction relief in state court on March 8, 2016. That
action remains pending.
petitioner filed the instant petition for a writ of habeas
corpus in this Court on October 5, 2017.
petitioner raises four challenges to his state-court
conviction. The respondent argues that the petitioner's
petition must be denied as untimely. The Court agrees with
the respondent that the petitioner's petition is
untimely, and thus his petition for a writ of habeas corpus
must be dismissed with prejudice.
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). “[F]or
a state prisoner who does not seek review in a State's
highest court, the judgment becomes ‘final' on the
date that the time for seeking such review expires.”
Gonzalez v. Thaler, 565 U.S. 134, 137 (2012).
“The one-year clock is stopped, however, during the
time the petitioner's ‘properly filed'
application for state postconviction relief ‘is
pending.'” Day v. McDonough, 547 U.S. 198,
201 (2006) (quoting 28 U.S.C. § 2244(d)(2)).
petitioner's convictions were affirmed on direct appeal
on March 8, 2007. Because he did not file a petition to
transfer with the Indiana Supreme Court, his judgment became
final on the deadline to file a petition to transfer, which
was April 9, 2007. See Gonzalez, 565 U.S. at 137.
Therefore, the petitioner had through April 9, 2008, to seek
federal habeas relief or to file for post-conviction relief
in state court, the latter of which, while pending, does not
count “toward [the] period of limitation.” 28
U.S.C. § 2244(d)(2); see Socha v. Boughton, 763
F.3d 674, 681 (7th Cir. 2014). The petitioner did neither. He
did not file his petition for post-conviction relief in state
court until April 29, 2008, which was twenty days beyond when
the one-year limitations period from § 2244(d)(1)(A) had
expired. The fact that he eventually re-filed for state
post-conviction relief is irrelevant; a pending state-court
collateral challenge only pauses the clock, and the
petitioner's clock had already expired. See Teas v.
Endicott, 494 F.3d 580, 582-83 (7th Cir. 2007).
the petitioner's one-year statute of limitations ran on
April 9, 2008. He did not file the instant petition for
habeas corpus until October 5, 2017. Although the period of
time during which his second state post-conviction petition
was pending would be excludable, his statute of limitations
expired before this proceeding paused the clock. Moreover,
the petitioner does not contend that he is entitled to
equitable tolling on any basis, and he did not file a reply
brief disputing the respondent's contention that his
petition was time-barred. Therefore, the petitioner's
petition for a writ of habeas corpus must be dismissed with
prejudice. See Altman v. Benik, 337 F.3d 764, 766
(7th Cir. 2003) (per curiam).
corpus has its own peculiar set of hurdles a petitioner must
clear before his claim is properly presented to the district
court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14
(1992) (O'Connor, J., dissenting) (internal citations
omitted). The petitioner has encountered the hurdle produced
by the one-year statute of limitations. He has not shown the
existence of circumstances permitting him to overcome this
hurdle, and ...