United States District Court, S.D. Indiana, Terre Haute Division
ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
R. SWEENEY II, JUDGE
petition for writ of habeas corpus, petitioner Raizen
McCullough challenges his two 2012 Marion County, Indiana
convictions for murder. The respondent argues that the
petition must be denied because it is time-barred. For the
reasons explained in this Order, Mr. McCullough's
petition for a writ of habeas corpus is
denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
Marion County jury convicted Mr. McCullough on August 21,
2012, of two counts of murder. The trial evidence
demonstrated that Mr. McCullough shot his two unarmed
housemates in the head following an early morning argument.
The trial court sentenced him on September 6, 2012, to
consecutive prison terms of 55 years and 60 years. Dkt. 6-1
at 5-6. The Indiana Court of Appeals affirmed the judgment on
April 19, 2013, McCullough v. State, 985 N.E.2d 1135
(Ind. App. 2013), and the Indiana Supreme Court denied Mr.
McCullough's petition to transfer on June 20, 2013, dkt.
6-1 at 7. Mr. McCullough did not file a petition for writ of
certiorari in the United States Supreme Court.
January 27, 2014, Mr. McCullough filed a petition for
post-conviction relief, which the trial court denied. Dkt.
6-1 at 7-8. On April 25, 2016, the Indiana Court of Appeals
dismissed the ensuing appeal for failure to file an opening
brief. Dkt. 6-8. Mr. McCullough did not file a petition to
transfer in the Indiana Supreme Court.
August 16, 2016, Mr. McCullough filed a petition for writ of
habeas corpus in this Court. Dkt. 6-9. But Mr. McCullough
then moved to dismiss the petition without prejudice, and the
Court granted that motion on October 21, 2016. Id.
November 9, 2016, Mr. McCullough filed a request for
authorization to file a successive post-conviction petition
in the Indiana Court of Appeals. Dkt. 6-11. On December 19,
2016, the court of appeals denied authorization to file the
petition. Dkt. 6-12.
7, 2018, Mr. McCullough filed his current petition for writ
of habeas corpus in this Court. Dkt. 1.
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 revised several statutes
governing federal habeas relief as part of The Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). 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)).
Statutory limitation period
McCullough's direct appeal petition to transfer was
denied on June 20, 2013. His conviction and sentence became
final 90 days later, on September 18, 2013, the deadline for
filing a petition for writ of certiorari in the United States
Supreme Court. Jimenez v. Quarterman, 555 U.S. 113,
119 (2009) (“[I]f the federal prisoner chooses not to
seek direct review in this Court, then the conviction becomes
final when ‘the time for filing a certiorari petition
expires.'” (quoting Clay v. United States,
537 U.S. 522, 527 (2003)). Therefore, the one-year period of
limitation began running on September 19, 2013, and continued
to run until January 24, 2014, when Mr. McCullough filed a
petition for post-conviction review. At that time, 127 days
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. McCullough's limitations
period remained tolled until June 9, 2016, the deadline for
filing a petition to transfer to the Indiana Supreme Court
after the Indiana Court of Appeals dismissed his
appeal. The ...