United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR., JUDGE UNITED STATES DISTRICT COURT
Aguilar, a prisoner without a lawyer, filed a habeas corpus
petition challenging his 45-year sentence for murder and
carrying a handgun without a license in Marion Superior Court
on March 30, 2007, under cause number 49G01-0610-MR-164155.
(ECF 2 at 1.) 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, Mr. Aguilar wrote:
Petitioner raised issues on PCR-1 post-conviction petition.
PC court ruled issues were available on direct appeal, and
waived. This is an incorrect application of law. Appellate
counsel failed/refused to raise fundamental error.
Fundamental error can be raised first time on
post-conviction relief, per prevailing law. Issues have never
been addressed on the merits; therefore, “manifest
injustice” standard applies, and “AEDPA” is
not a bar to petitioner's filing.
Petitioner has filed a second, successive petition for
post-conviction relief (PCR-2). Indiana court of appeals has
refused to address fundamental error on the merits; and has
refused to allow petitioner to file post-conviction petition
or raise issues. No. further state remedy exists.
(ECF 2 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 that state action impeded Mr. Aguilar from
filing a habeas corpus petition sooner, or that his claims
are based on either a newly recognized constitutional right
or newly discovered evidence. Therefore, 28 U.S.C. §
2244(d)(1)(B), (C) and (D) don't apply.
Aguilar filed a direct appeal and the Court of Appeals of
Indiana affirmed his conviction on February 27, 2008.
Aguilar v. State, 881 N.E.2d 733 (Ind.Ct.App. 2008)
(table). Mr. Aguilar didn't petition for transfer to the
Indiana Supreme Court and his time to do so expired on March
28, 2008. 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. Thaler,
565 U.S. 134, 150 (2012) (when a state prisoner doesn't
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). His limitation period
began to run on March 29, 2008.
clock stopped when he filed his petition for post-conviction
relief on December 11, 2008. That petition was resolved on
May 20, 2015, and Mr. Aguilar didn't appeal the denial to
the Indiana Court of Appeals. His time to do so expired on
June 19, 2015. See Ind. R. App. P. 9(A)(1) (thirty
days to file an appeal). Therefore, the decision denying his
post-conviction relief petition became final on June 19,
2015, and the clock began ticking again the next day. He
didn't file this petition until three years later, on
June 20, 2018.
Aguilar did seek leave to file a successive post-conviction
relief petition in January of 2018, but by the time he filed
his request his one year limitation period had already
expired. Once the limitations period expired, filing another
post-conviction relief petition doesn't
“restart” the federal clock, or “open a new
window for federal collateral review.” De Jesus v.
Acevedo, 567 F.3d 941, 942-943 (7th Cir. 2009).
Moreover, an unauthorized successive post-conviction petition
wouldn't have tolled the one-year period of limitations
even if it had been filed before the deadline expired.
See Powell v. Davis, 415 F.3d 722, 726-727 (7th Cir.
2005) (“Because an unauthorized successive petition is
not considered ‘properly filed' under Indiana law,
the one-year limit was not extended under §
2244(d)(2)” while the petitioner's request to
pursue a successive petition was pending.).
Aguilar argues that it would be a manifest injustice to bar
his petition. (ECF 2 at 5.) Mr. Aguilar filed a petition for
habeas corpus challenging this conviction once before, when
his post-conviction relief petition was still pending.
Aguilar v. Superintendent, 3:10-CV-538-PS (N.D.
Ind., filed Dec. 30, 2010). The petition was dismissed
without prejudice because Mr. Aguilar hadn't exhausted
his claims. That order thoroughly explained the statute of
limitations provision to Mr. Aguilar at that time. He was
told that he had used up 257 days, and that, upon the
conclusion of his post-conviction relief petition, he would
still have 108 days within which to file a timely habeas
petition. There is no manifest injustice in barring
Mr. Aguilar's petition when he was specifically advised
of the time that would be remaining to file the petition once
the post-conviction relief petition became final and he
didn't file his petition within that time frame, instead
waiting three full years to file his petition. Accordingly,
the petition will be denied as untimely.
the petition were timely, Mr. Aguilar hasn't exhausted
his claims in the state courts. To exhaust a claim,
“the petitioner must raise the issue at each and every
level in the state court system, including levels at which
review is discretionary rather than mandatory.”
Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir.
2004). Mr. Aguilar hasn't presented any of his claims to
the Indiana Supreme Court, so his claims are unexhausted.
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). There is no basis for finding that jurists
of reason would debate the correctness of today's
procedural ruling, so there is no basis for encouraging
petitioner to proceed further. Thus, a certificate of
appealability must be denied. For the same reasons, Mr.
Aguilar can't appeal in forma pauperis because an appeal
couldn't be taken in good faith.
these reasons, the court:
(1) DENIES habeas corpus pursuant to Section 2254 Habeas
Corpus Rule 4 because the ...