United States District Court, S.D. Indiana, Indianapolis Division
O'CONNELL PENDLETON - CF PENDLETON CORRECTIONAL FACILITY
ELECTRONIC SERVICE PARTICIPANT - COURT ONLY TYLER G. BANKS
INDIANA ATTORNEY GENERAL JESSE R. DRUM INDIANA ATTORNEY
ORDER GRANTING MOTION TO DISMISS PETITION FOR A WRIT
OF HABEAS CORPUS AND DENYING CERTIFICATE OF
EVANS BARKER, JUDGE United States District Court Southern
District of Indiana
Leif O'Connell was convicted in an Indiana state court of
murder and attempted murder in 1999. Mr. O'Connell seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondent argues, among other things, that Mr.
O'Connell's habeas petition is time-barred. Mr.
O'Connell has replied, arguing that he is entitled to
reasons explained in this Order, Mr. O'Connell'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.
O'Connell was found guilty of murder and multiple counts
of attempted murder in St. Joseph County, Indiana. After the
Indiana Court of Appeals affirmed his convictions and
sentence, the Indiana Supreme Court affirmed Mr.
O'Connell's conviction but remanded for a more
developed sentencing statement. A new sentencing statement
was issued, the Indiana Court of Appeals again affirmed Mr.
O'Connell's sentence, and the Indiana Supreme Court
denied Mr. O'Connell's petition to transfer on
January 31, 2002.
O'Connell filed a first petition for state
post-conviction relief on April 10, 2002, which was denied
more than twelve years later on August 18, 2014. He did not
appeal that denial to the Indiana Court of Appeals. On May
15, 2015, Mr. O'Connell sought permission from the
Indiana Court of Appeals to file a successive petition for
state post-conviction relief, which was denied on June 26,
2015. Over a year later, on September 16, 2016, Mr.
O'Connell filed a second request for permission to file a
successive petition for state post-conviction relief, which
was granted on October 4, 2016. The state post-conviction
court denied relief, and the Indiana Court of Appeals
affirmed. Mr. O'Connell's petition to transfer to the
Indiana Supreme Court was denied on February 21, 2019.
O'Connell filed a petition for a writ of habeas corpus in
this Court on March 4, 2019.
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)).
Indiana Supreme Court denied Mr. O'Connell's petition
to transfer his direct appeal on January 31, 2002. The time
to seek certiorari from the United States Supreme Court
expired ninety days later on May 1, 2002. See Rule
13, Rules of the Supreme Court of the United States. His
conviction became final on that date. Gonzalez v.
Thayer, 565 U.S. 134, 150 (2012). Typically, this is
when the one-year limitations period would begin to run. But
Mr. O'Connell filed his first petition for state
post-convict ion relief on April 10, 2002, and the
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).
O'Connell's first petition for state post-conviction
relief was denied on August 18, 2014. He did not appeal that
denial to the Indiana Court of Appeals, which was due no
later than September 17, 2014. See Ind. App. R.
9(A)(1). The limitations period began to run at this time.
O'Connell filed a petition to modify his sentence on
December 4, 2014, which was denied by the trial court on
March 6, 2015. The limitations period was similarly tolled
while this petition was pending, up until the time to appeal
the denial ...