United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
Evans Barker, United States District Judge.
John Laboa was convicted of attempted child molesting in
Floyd County, Indiana, in 2014. Mr. Laboa 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. Mr. Laboa responded that his untimeliness
should be excused because he was unaware of the one-year time
limitation. For the reasons explained in this Order, the
respondent's motion to dismiss, dkt. , is
granted, Mr. Laboa's petition for a writ
of habeas corpus is dismissed with
prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
Laboa pleaded guilty and was sentenced on April 9, 2014. Dkt.
6-1. He did not appeal. On March 26, 2015, Mr. Laboa filed a
petition for post-conviction relief in state court. Dkt. 6-2.
He withdrew the petition on February 3, 2017, and filed a new
petition for post-conviction relief on April 12, 2017, which
was denied on January 30, 2018. Mr. Laboa's appeal of
that decision is still pending before the Indiana Court of
Appeals under cause number 18A-CR-951. On February 6, 2019,
Mr. Laboa filed the instant petition for a writ of habeas
corpus, which was signed on January 28, 2019, seeking federal
collateral review of his conviction.
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). 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
Antiterrorism and Effective Death Penalty Act
(“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)).
Laboa's conviction and sentence became final on May 9,
2014, when the time to appeal expired. See Gonzalez v.
Thaler, 565 U.S. 134, 150(2012) (explaining that a
conviction is “final” when the time for seeking
direct review from the judgment affirming the conviction has
expired). The one-year period of limitation ran until March
26, 2015, when Mr. Laboa filed his first petition for
post-conviction review. At that time, 321 days had elapsed.
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. Laboa's limitations
period was tolled until he withdrew his state post-conviction
petition on February 3, 2017. At that time he had 44 days
left to file a federal habeas petition. His limitations
period expired on March 19, 2017. Although Mr. Laboa filed a
new petition for post-conviction relief on April 12, 2017,
the limitations period had already expired.
Laboa mailed his federal habeas petition on January 28, 2019,
more than a year after his limitations period had expired.
The following chart illustrates this:
May 9, 2014
365 days left in limitation period
First State Post-Conviction Filed (statute of
March 26, 2015
44 days left in limitation period
First State Post-Conviction Withdrawn (tolling ends)
February 3, 2017
44 days left in limitation period
Federal Habeas Petition Due
March 19, 2017
0 days left in limitation period
Federal Habeas Petition Mailed
January 28, 2019
680 days beyond limitation period
Laboa asserts in his petition that he has diligently sought
relief in state court and asks how much time has been tolled
during those proceedings. Unfortunately for Mr. Laboa, his
limitations period expired before he re-filed his state
post-conviction petition and therefore there is no time left
to toll while the appeal of that petition remains pending
before the Indiana Court of Appeals. Mr. Laboa also asks
whether Brown v. Boughton, No. 18-CV-265-JPS, 2018
WL 3614130 (E.D. Wis. July 27, 2018), might apply to his
case. In Brown, the Eastern District Court of
Wisconsin gave the petitioner a chance to withdraw his
unexhausted claims and proceed only with his exhausted
claims. This avenue is not available to Mr. Laboa both
because his limitations period has expired and because he has
no exhausted claims to present at this time.
Laboa argues that he should be entitled to equitable tolling
because he was unaware of the one-year time limitation.
“[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 meant to
cover matters outside its control.” Id. It is
the petitioner's “burden to establish both
[elements].” Socha v. Boughton, 763 F.3d 674,
683 (7th Cir. 2015).
not a chimera-something that exists only in the imagination,
equitable tolling is an extraordinary remedy that is rarely
granted.” Carpenter v. Douma, 840 F.3d 867,
870 (7th Cir. 2016) (citations and quotation marks omitted);
see Socha, 763 F.3d at 684 (“[T]olling is
rare; it is reserved for extraordinary circumstances far