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Bonds v. Butts

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

March 14, 2019

MARK BONDS, Petitioner,
v.
KEITH BUTTS, Warden Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS, DENYING CERTIFICATE OF APPEALABILITY, AND DIRECTING ENTRY OF FINAL JUDGMENT.

          HON. JANE MAGNUS-STINSON, CHIFE JUDGE.

         I. Introduction

         Petitioner Mark Bonds is an Indiana prisoner incarcerated by respondent in the New Castle Correctional Facility pursuant to the judgment of Marion County (Indiana) Superior Court, case number 49G03-1009-FA-074984. Mr. Bonds seeks habeas corpus relief, but respondent contends that the petition was filed too late, after the limitations period prescribed in 28 U.S.C. § 2244(d) had run and moves to dismiss the petition on that ground. Mr. Bonds replied in opposition to the motion but his arguments are unavailing. For the reasons explained below, respondent's motion to dismiss, dkt. [9], is granted because the petition is untimely, and the petition is therefore dismissed with prejudice.

         II. Controlling Law

         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 the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), revised several of the statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). The applicable statute of limitations provision is one year.

[A] state prisoner has one year to file a federal petition for habeas corpus relief, starting from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Wood v. Milyard, 566 U.S. 463, 468 (2012) (quoting 28 U.S.C. § 2244(d)(1)(A)); see also Gladney v. Pollard, 799 F.3d 889, 894 (7th Cir. 2015). Pursuant to 28 U.S.C. § 2244(d)(2), the running of this one-year period is tolled while a “properly filed” application for post-conviction relief is pending in state court. See Price v. Pierce, 617 F.3d 947, 950 (7th Cir. 2010) (quoting 28 U.S.C. § 2244(d)(2)).

         Thus, a petition challenging a conviction that became final more than one year prior to the petition's filing is untimely and, subject to the rare exception of equitable tolling, must be dismissed. Gladney, 799 F.3d at 894 (citing 28 U.S.C. § 2244(d)(1)(A)).

         III. State Court Procedural History

         Mr. Bonds was convicted following a jury trial in the Marion County Superior Court on October 31, 2012. A judgment of conviction was entered on the docket on November 1, 2012, and sentencing occurred November 13, 2012. A direct appeal was pursued to the Indiana Court of Appeals in case number 49A02-1212-CR-974, which ended on June 4, 2013, with the court's affirmance of Mr. Bonds's convictions. Dkt. 9-6. A petition to transfer to the Indiana Supreme Court was denied on August 15, 2013. Review before the Supreme Court of the United States was not sought, thus Mr. Bonds's conviction became final on November 13, 2013, ninety days after the Indiana Supreme Court denied transfer. 28 U.S.C. § 2244(d)(1)(A); Gonzales v. Thayer, 565 U.S. 134, 150 (2012).

         Mr. Bonds had commenced a pro se petition for post-conviction relief in the trial court on September 30, 2013, before his conviction became final. Dkt. 9-1, p. 29. Thus the limitations period in Section 2244(d) did not begin to run after the conviction became final because a properly filed application for state post-conviction review was then pending. 28 U.S.C. § 2244(d)(2). The post-conviction petition was denied on the merits by the trial court on August 24, 2016. Dkt. 9-1, p. 39. An appeal was taken to the Indiana Court of Appeals in case number 49A02-1608-PC-1943, with that court affirming the denial of post-conviction relief on July 19, 2017. Dkt. 9-12.

         Respondent asserts that Mr. Bonds did not thereafter seek transfer to the Indiana Supreme Court, but Mr. Bonds asserts that he did. The record shows that Mr. Bonds filed a petition for transfer with the appellate clerk, but the clerk issued a “notice of defect” on August 8, 2017, because the petition's certificate of service was undated. Dkt. 9-8, p. 10. The defective petition was returned to Mr. Bonds on October 18, 2017. Id. There is no record of any further attempt to seek transfer to the Indiana Supreme Court. The 28 U.S.C. § 2241(d)(1) limitations period could have started to run on July 19, 2017, when the Court of Appeals denied the post-conviction appeal. But it might not have started until thirty days later, on August 18, 2017, when the time for filing a petition for transfer to the Indiana Supreme Court expired. Ind. R. App. P. 56.C.[1] The Court will use the later date to determine whether the instant habeas corpus petition is timely.

         Mr. Bonds filed a petition for leave to pursue a successive post-conviction action on May 22, 2018. This type of filing is allowed by Indiana law, see Ind. Post-Conviction Rule 12, but it does not toll the Section 2241(d)(1) limitations period. Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir. 2009) (per curiam) (holding that a state's pre-authorization process does not toll the AEDPA's limitations period); Tinker v. Hanks, 255 F.3d 444, 445-46 (7th Cir. 2001).

         Thus in this case, calculating the number of days that have run in the limitations period is determined by counting the number of days between August 18, 2017 (when the post-conviction proceeding became final) and the filing of the instant habeas corpus petition on November 13, 2018. There were no intervening periods of tolling. A total of 452 days elapsed, which is 87 days after the limitations period expired.

         This timeline illustrates the calculation with the number of days in the statute of limitations (SOL) period noted as well as ...


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