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McCullough v. Warden, Wabash Valley Correctional Facility

United States District Court, S.D. Indiana, Terre Haute Division

June 7, 2019

RAZIEN MCCULLOUGH, Petitioner,
v.
WARDEN Wabash Valley Correctional Facility, Respondent.

          ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          JAMES R. SWEENEY II, JUDGE

         In his 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.

         I. Background

         A 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.

         On 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.

         On 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.

         On 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.

         On June 7, 2018, Mr. McCullough filed his current petition for writ of habeas corpus in this Court. Dkt. 1.

         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 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)).

         III. Discussion

         A. Statutory limitation period

          Mr. 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 had elapsed.

         A 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.[1] The ...


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