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Phillips v. Warden

United States District Court, N.D. Indiana, South Bend Division

August 16, 2019

WARDEN, Respondent.



         Antonio Phillips, a prisoner without a lawyer, was convicted of dealing cocaine in cause number 02D04-0804-FA-000013 following a jury trial. On November 14, 2008, the Allen Superior Court sentenced him to thirty-five years of incarceration. Phillips filed the instant habeas corpus petition under 28 U.S.C. § 2254 to challenge that conviction and sentence. The court ordered the Warden to respond pursuant to Section 2254 Habeas Corpus Rule 5, and he did so by filing a motion to dismiss the petition as untimely. ECF 12. In reply, Phillips filed a “motion to grant petition, ” arguing that “the petition may or may not be late, ” but relief should be granted to prevent a fundamental miscarriage of justice. ECF 14.

         The statute of limitations for habeas corpus cases is set forth in 28 U.S.C. § 2244(d), which provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

         Question 9 on the habeas corpus petition sets forth the text of the statute and asks for an explanation for why the petition is timely. In response, Phillips wrote:

This petition is timely because Phillips' U.S. Constitutional Rights were completely violated in every imaginable way. This case is a prime example of Faretta v. California and more. This case has extraordinary circumstances where Phillips was falsely charged, maliciously prosecuted, fraudulently convicted, and wrongfully incarcerated and deprived of his liberty for more than a decade. Phillips is not a lawyer and ignorant to the knowledge and use of a computer so he cannot look cases up his self (sic). Provided is some transcript pages and motions alleged to be filed and chronological case summary that shows they were never filed. The trial and judicial process is a mockery of justice and a fundamental miscarriage of justice.

ECF 1 at 12. In his reply, he concedes that the petition may be late, but he doubles down on the assertion that the court must correct a “fundamentally unjust incarceration.” ECF 14 at 1. Nothing in those answers or any other part of the petition indicates his claims are based on a newly recognized constitutional right that has been made retroactive on collateral review or that newly discovered evidence applies to save his claims. And, although Phillips references his lack of legal and computer knowledge, that cannot be attributed to State action that impeded him from filing a federal habeas corpus petition. See e.g. Pennsylvania v. Finley, 481 U.S. 551 (1987) (prisoners do not have a right to the assistance of legal counsel when mounting collateral attacks); Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013) (even in the context of equitable tolling, lack of familiarity with the law does not excuse untimeliness); Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir. 2007) (“[W]hatever constitutes an impediment must prevent a prisoner from filing his petition.”). Nor can his assertion that it took several years due to the actions of the “state officials” to get the transcripts that he attaches to his petition (see ECF 1 at 18), because the lack of transcripts did not physically prevent Phillips from preparing a timely habeas petition and mailing it to this court. See Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (“The state's failure to provide [the petitioner] with a transcript did not prevent him from filing his habeas corpus petition, and the time limit contained in § 2244(d)(1)(B) does not apply to this case.”). Thus, 28 U.S.C. § 2244(d)(1)(B), (C) and (D) are not applicable here.

         Although Phillips does not argue that equitable tolling applies, he does argue that denying his habeas petition would constitute a fundamental miscarriage of justice because he is innocent of the charges for which he was convicted. “To invoke the miscarriage of justice exception to AEDPA's statute of limitations . . . a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (internal quotation marks and citation omitted). A petitioner who asserts actual innocence “must demonstrate innocence; the burden is his, not the state's . . . .” Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). Furthermore, actual innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). To support a claim of actual innocence, the petitioner must come forward with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial, ” Schlup v. Delo, 513 U.S. 298, 324 (1995), and must show that “in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537 (2006) (citing Schlup, 513 U.S. at 327). Because of the difficulty of meeting this standard, such claims are “rarely successful.” Schlup, 513 U.S. at 324.

         Phillips has not submitted any new scientific evidence, an eyewitness account, or physical evidence. Rather he has presented his own affidavit which states that: (1) he never sold drugs to anyone but was instead framed by the detectives; (2) one of the detectives who testified at his trial was an “imposter;”[1] and (3) there were procedural irregularities within the state post-conviction proceedings. ECF ...

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