United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Senior Judge United States
Michael Haury was convicted of murder in Vanderburgh County,
Indiana, in 1990. Mr. Haury now seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The respondent argues,
among other things, that Mr. Haury's habeas petition is
time-barred. Mr. Haury has replied.
reasons explained in this Order, Mr. Haury's habeas
petition is time-barred and must be dismissed with prejudice.
In addition, the Court finds that a certificate of
appealability should not issue.
Haury pleaded guilty to murder in Vanderburgh County, Indiana
in 1990, and he was sentenced on August 14, 1990, to
sixty-years' imprisonment. Mr. Haury did not appeal his
sentencing. Mr. Haury filed a petition for post-conviction
relief in state court on July 2, 1991, which remained pending
until he voluntarily withdrew it on May 24, 1993. Mr. Haury
did not file any more challenges to his murder conviction
until January 2005, when he filed a motion to correct error
in state court, and February 2006, when filed a second state
petition for post-conviction relief. Mr. Haury filed the
instant habeas petition in this Court on March 22, 2018.
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 the
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)).
Haury's conviction and sentence became final long before
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) became effective on April 24, 1996.
“AEDPA imposes a one-year statute of limitations on
habeas corpus petitions brought by state prisoners, 28 U.S.C.
§ 2244(d), but for prisoners whose convictions became
final prior to AEDPA's enactment on April 24, 1996, there
was a one-year grace period in which to file.”
Newell v. Hanks, 283 F.3d 827, 832 (7th Cir. 2002).
Mr. Haury thus had one-year-until April 24, 1997-to file his
federal habeas petition or have a properly filed petition for
state post-conviction relief pending that tolled the
limitations period under 28 U.S.C. § 2244(d)(2). See
Lozano v. Frank, 424 F.3d 554, 555 (7th Cir. 2005).
Haury did not file the instant habeas petition until March
22, 2018, which is more than twenty years after his statute
of limitations had run. The fact that he filed a second state
petition for post-conviction relief in 2006, many years after
the limitations period has run, is of no benefit to Mr.
Haury; a pending state-court collateral challenge only pauses
the clock, and his clock had already expired. See Teas v.
Endicott, 494 F.3d 580, 582-83 (7th Cir. 2007).
Haury's two replies (labeled as motions for summary
judgment) do not meaningfully resist this conclusion and are
difficult to discern. But, liberally construed, he does not
contest any of the facts establishing that his petition is
time-barred or raise any argument that equitable tolling
Mr. Haury's petition for a writ of habeas corpus is
dismissed as untimely.
Haury has not shown the existence of circumstances permitting
him to overcome the untimeliness of his petition. His
petition is therefore dismissed with prejudice. Mr.
Haury's motion for summary judgment, dkt. , ...