United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Smithers, a prisoner without a lawyer, filed a habeas corpus
petition under 28 U.S.C. § 2254 to challenge his
conviction for conspiracy to commit murder under No.
41D02-1110-FC-83. Following a guilty plea, on February 5,
2003, the Johnson Superior Court sentenced him to fifty years
of incarceration. Pursuant to Section 2254 Habeas Corpus Rule
4, the court must dismiss the petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
statute of limitations for habeas corpus cases is set forth
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
start, the court considers whether the petition is timely
under Section 2244(d)(1)(A). Because Smithers did not file a
petition to transfer on direct appeal, his conviction became
final when the time for filing a petition to transfer expired
on March 22, 2003. See Ind. App. R. 57(C) (appeal
must be filed with the Indiana Supreme Court within 45 days
of adverse decision if no request for rehearing). The federal
limitations period expired one year later on March 22, 2004.
Though Smithers pursued post-conviction relief in State court
in 2011, these efforts did not restart the federal
limitations period, nor did it “open a new window for
federal collateral review.” De Jesus v.
Acevedo, 567 F.3d 941, 943 (7th Cir. 2009). As a result,
when Smithers filed this habeas petition in December 2018, he
was more than fourteen years too late under 2244(d)(1)(A).
argues that the operative provision is Section 2244(d)(1)(B),
stating that the State has created an impediment by providing
insufficient legal assistance and resources in light of his
mental limitations. “[W]hatever constitutes an
impediment must prevent a prisoner from filing his petition.
Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir.
2002). “The Seventh Circuit has yet to decide whether
an inadequate library is grounds for statutory tolling as a
state-created impediment.” Moore v. Battaglia,
476 F.3d 504, 507 (7th Cir. 2007).
also argues that his claim of actual innocence excuses the
untimely nature of his petition, citing Schlup v.
Delo, 513 U.S. 298 (1995). According to Schlup,
“if a petitioner . . . presents evidence of innocence
so strong that a court cannot have confidence in the outcome
of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error, the
petitioner should be allowed to pass through the gateway and
argue the merits of his underlying claims.”
Id. at 316. Schlup applied the actual
innocence exception to excuse a successive petition, but the
exception has since been extended to excuse timeliness under
Section 2244(d). McQuiggin v. Perkins, 569 U.S. 383,
394 (2013). The actual innocence exception has also been
extended to guilty pleas. Bousley v. United States,
523 U.S. 614, 624 (1998). For an actual innocence claim, the
petitioner must show that “in light of new evidence, it
is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.”
Gladney v. Pollard, 799 F.3d 889, 896 (7th Cir.
2015). “[The] evidence must . . . be new in the sense
that it was not before the trier of fact. Arnold v.
Dittmann, 901 F.3d 830, 836-37 (7th Cir. 2018); see
also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.
2003) (defining “new evidence” in the context of
guilty plea). “The actual innocence standard is a
demanding one that permits review only in the extraordinary
case.” Coleman v. Lemke, 739 F.3d 342, 349
(7th Cir. 2014).
on the assertion of a State-created impediment and the actual
innocence claim, the court cannot conclude that Smithers is
foreclosed from obtaining habeas relief at this time.
Nevertheless, these claims as pled are too vague for
meaningful evaluation. Therefore, before allowing this case
to proceed, the court will require Smithers to elaborate on
these claims. Specifically, with respect to the State-created
impediment claim, Smithers must describe what legal
assistance he needed from the State to file a habeas
petition, what efforts he made to obtain such legal
assistance, and how the inadequate legal assistance has
prevented him filing a federal habeas petition since 2003
when his conviction became final.
with respect to the actual innocence claim, Smithers must
identify the new evidence and explain how it supports the
claim that he is actually innocent. He should also explain
when and how he discovered the new evidence. If this evidence
is already in his possession or is reasonably available to
him, he should submit it to the court. However, if he does
not have access to the evidence, he should ...