United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS,
DENYING CERTIFICATE OF APPEALABILITY, AND DIRECTING ENTRY OF
JANE MAGNUS-STINSON, CHIFE JUDGE.
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.
, is granted because the petition is
untimely, and the petition is therefore dismissed
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. §
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)).
State Court Procedural History
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).
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.
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. The Court will use the later date to
determine whether the instant habeas corpus petition is
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).
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.
timeline illustrates the calculation with the number of days
in the statute of limitations (SOL) period noted as well as