Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Berry v. Warden

United States District Court, S.D. Indiana, Indianapolis Division

November 13, 2018

JOHN BERRY, Petitioner,
v.
WARDEN, Respondent.

          ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          HON. JANE MAGNUS-STINSON JUDGE

         Petitioner John Berry was convicted of attempted murder in an Indiana state court. He is currently serving a forty-year sentence for this crime. Mr. Berry now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent argues that the petition must be denied because it is time-barred. For the reasons explained in this Order, Mr. Berry's petition for a writ of habeas corpus is denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. Background

         Mr. Berry was convicted on July 19, 2010, and sentenced on August 11, 2010. Dkt. 6-1. On direct appeal, the Indiana Court of Appeals reversed his conviction, finding that “the circumstances of Berry's case fall squarely within the doctrine of settled insanity.” Dkt. 6-4 at 3-4. On June 20, 2012, the Indiana Supreme Court granted transfer, determined that the trial court appropriately found that Mr. Berry's conduct was the result of voluntary abuse of alcohol and was not caused by a mental disease or defect, and affirmed the trial court's rejection of Mr. Berry's insanity defense. Dkt. 6-4. Mr. Berry sought rehearing which was denied by the Indiana Supreme Court on October 4, 2012. Dkt. 6-2.

         On March 11, 2013, Mr. Berry filed a petition for post-conviction relief. Dkt. 6-1. After a hearing, on February 17, 2016, the post-conviction court entered findings of fact, conclusions of law, and a judgment denying the petition. Id. The Indiana Court of Appeals affirmed the denial of post-conviction relief on February 27, 2017. Dkt. 6-5. The Indiana Supreme Court denied transfer on May 2, 2017. Dkt. 6-3. On March 26, 2018, Mr. Berry filed the instant petition for a writ of habeas corpus which was signed on March 23, 2018 seeking federal collateral review of his conviction.

         II. Applicable Law

         A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody “in violation of the Constitution or laws . . . of the United States.” 28 U.S.C. § 2254(a) (1996). Mr. Berry filed his 28 U.S.C. § 2254 petition after the April 19, 1996, effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). His petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

         In an 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 AEDPA, revised several statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). “Under 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). “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)). To the extent applicable, 28 U.S.C. § 2244(d)(1)(C) provides that a state prisoner “has one year to file a habeas petition based on a newly recognized constitutional right made retroactively applicable by the Supreme Court to collateral review.”

         III. Discussion

         Mr. Berry's conviction and sentence became final when the time to seek certiorari in the United States Supreme Court expired following his 2012 direct appeal. 28 U.S.C. § 2244(d)(1)(A). Because the Indiana Supreme Court denied his petition for rehearing on October 4, 2012, the time to seek certiorari expired on January 2, 2013. See Rule 13, Rules of the Supreme Court of the United States. His conviction became final on that date. The one-year period of limitation ran until March 11, 2013, when Mr. Berry filed a petition for post-conviction review. Dkt. 6-1. At that time, 68 days had elapsed.

         A limitations period is tolled during the time in which the petitioner has pending a “properly filed application for State post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2). Mr. Berry's limitations period remained tolled until the Indiana Supreme Court denied his petition to transfer his appeal from the denial of post-conviction relief on May 2, 2017. Mr. Berry filed his habeas petition in this Court on March 23, 2018. Therefore, 325 days elapsed between the denial of his petition for post-conviction relief and the filing of his federal habeas petition. Combined with the 68 days that had elapsed between his conviction being final on direct appeal and the filing of his petition for post-conviction relief, a total of 393 days had passed before Mr. Berry filed his habeas petition. The following chart illustrates the time calculation:

Conviction Final

January 2, 2013

365 days left in limitation period

State Post-Conviction Filed

March 11, 2013

297 days left in limitation period

Indiana Supreme Court Denies Petition to Transfer (Clock Resumes)

May 2, 2017

297 days left in limitation period

Federal Habeas Petition Due

February 23, 2018

0 days left in limitation period

Federal Habeas Petition Mailed

March 23, 2018

28 days beyond limitation period

         Mr. Berry argues that the clock did not begin to run again until ninety days after the Indiana Supreme Court denied his petition to transfer in his post-conviction proceedings. While it is true that the clock is tolled for ninety days following direct appeal to allow time to file a petition for certiorari before the United States Supreme Court, the same time frame is not tolled after state post-conviction relief proceedings. Lawrence v. Florida, 549 U.S. 327, 331-32 (2007) (a certiorari petition from post-conviction review does not toll the time limit or otherwise act as a grace period); Taylor v. Michael, 724 F.3d 806, 808 (7th Cir. 2013). Therefore, Mr. Berry had until February 23, 2018, to file a petition for writ of habeas corpus. However, he did not file his petition until March 23, 2018, which was 28 days after the limitations period expired.

         Mr. Berry states that he was denied access to the law library when his habeas petition was filed. This assertion raises the question of whether he is entitled to equitable tolling. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010). These two “elements” are distinct. Menominee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 756 (2016). The diligence element “covers those affairs within the litigant's control; the extraordinary-circumstances prong, by contrast, is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.