United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE
Earl Hubbard, a prisoner without a lawyer, filed a habeas
corpus petition attempting to challenge his guilty plea and 6
year sentence for residential entry and invasion of privacy
as an habitual offender by the Allen Superior Court on
December 2, 2013, under cause number 02D04-1308-FD-911. ECF 1
at 1 and ECF 1-1 at 5. Habeas corpus petitions are subject to a
strict one-year statute of limitations.
9 on the habeas corpus petition sets forth the text of the
statute and asks for an explanation for why the petition is
timely. In response, Hubbard wrote:
I have tried everything I know to do, plus after talking with
the victim and researching protective orders and looking over
my paperwork, I seen that this conviction on Count II should
be take off because it violate my constitutional rights plus
there [no] such law a permanent order of protection, after
the victim has ask the court an oral request to please
dismiss this without prejudice or condition, and the court
sent it threw any way violated my due process right and the
United States District Court should have a look at this
because I'm a United State Citizen who have rights.
ECF 1 at 5. 28 U.S.C. § 2244(d) provides four possible
dates from which the limitation period can begin to run.
Nothing in the answer to question 9 or any other part of the
petition indicates State action impeded Hubbard from filing a
habeas corpus petition sooner or that his claims are based on
a newly recognized constitutional right. Therefore 28 U.S.C.
§ 2244(d)(1)(B) and (C) are not applicable here.
Hubbard does say in his petition that, “on June 6,
2013, [the victim] ma[de] a oral request on the record to
dismiss the protection order without prejudice [and he] just
found out [though] the victim that this was all wrong and
that I need to look at it.” ECF 1 at 3. To qualify as a
claim based on newly discovered evidence, the claim must be
presented within one year from “the date on which the
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.”
28 U.S.C. § 2244(d)(1)(D). The Seventh Circuit has made
clear that the time runs from the date when the evidence
could have been discovered through diligent inquiry, not when
it was actually discovered or when its significance was
realized. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.
2001). Through diligent inquiry, Hubbard could have learned
what happened during the June 6, 2013, hearing before he
pleaded guilty and was sentenced on December 2, 2013. The
importance of the protection order was known to him at that
time and details about how it was issued could have been
discovered. Thus, 28 U.S.C. § 2244(d)(1)(D) is not
applicable to this case. Rather, 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 the time to
pursue direct review.
filed a direct appeal and the Court of Appeals of Indiana
affirmed his conviction on July 31, 2014. Hubbard v.
State, 2014 WL 3765758, 16 N.E.3d 1042 (Ind.Ct.App.
2016) (table). He did not petition for transfer to the
Indiana Supreme Court and his time to do so expired September
2, 2014. See Ind. R. App. P. 57(C) (thirty days to
petition for transfer); Ind. R. Trial P. 6(A) (“[t]he
period runs until the end of the next day that is not a
Saturday, a Sunday, a legal holiday, or a day on which the
office is closed.”); and Gonzalez v. Thayer,
565 U.S. 134, 150 (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). Thus his limitation
period began to run on September 3, 2014, but was tolled 7
days later when he filed a Motion to Correct Error in
State court on September 10, 2014. ECF 1 at 2. It began again
on January 24, 2015, after the motion was denied on January
23, 2015. Id. It was tolled 47 days later when he
filed a post-conviction relief petition on March 12, 2015.
Then it restarted for the last time when his post-conviction
relief petition was denied on September 2, 2015. By then, 54
days of his 365 day (1-year) period of limitation had expired
and only 311 days remained. On July 11, 2016, the deadline
for filing a habeas corpus petition expired. See
Fed. R. Civ. P. 6(a)(1)(C) (“if the last day is a
Saturday, Sunday, or legal holiday, the period continues to
run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.”). Hubbard's first filing
in this habeas corpus case is dated May 3, 2018. ECF 1 at 5.
Therefore this habeas corpus case was filed nearly three
years late and must be denied.
to 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). Here, there is no basis for finding that
jurists of reason would debate the correctness of this
procedural ruling. Therefore, there is no basis for
encouraging petitioner to proceed further. Thus, a
certificate of appealability must be denied. For the same
reasons, he may not appeal in forma pauperis because an
appeal could not be taken in good faith.
these reasons, the court:
DENIES habeas corpus pursuant to Section 2254 Habeas Corpus
Rule 4 because the petition is untimely;
DENIES Robert Earl Hubbard a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11;
DENIES Robert Earl Hubbard leave to appeal in forma pauperis
pursuant to 28 U.S.C. § 1915(a)(3); and
DIRECTS the Clerk is ...