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O'Connell v. Zetecky

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

May 14, 2019

LEIF O'CONNELL, Petitioner,
v.
DUSHAN ZETECKY, Respondent.

          ORDER GRANTING MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE, UNITED STATES DISTRICT COURT

         Petitioner 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 equitable tolling.

         For the 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.

         I. Background

         Mr. 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.

         Mr. 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.

         Mr. O'Connell filed a petition for a writ of habeas corpus in this Court on March 4, 2019.

         II. Applicable Law

         A 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)).

         III. Discussion

         The 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).

         Mr. 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.

         Mr. 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 elapsed on April 5, 2015. See Wall v. Kholi, 562 U.S. 545, 556-57 (2011).

         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 5, 2016. The limitations period was not tolled while Mr. O'Connell sought permission to file a successive state post-conviction petition; it was only tolled once permission was granted. See Martinez v. Jones, 556 F.3d 637, 638-39 (7th Cir. 2009) (“[W]here state law requires pre-filing authorization-such as an application for permission to file a successive ...


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