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Hatton v. Warden

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

September 30, 2019

TIMOTHY N. HATTON, Petitioner,
v.
WARDEN, Respondent.

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

          SARAH EVANS BARKER, JUDGE.

         Petitioner Timothy N. Hatton was convicted in an Indiana state court of child molesting in 2013. Mr. Hatton now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent argues that the petition must be denied because it is time-barred. Mr. Hatton has responded and the respondent has replied.[1] The motion is now ripe for review.

         For the reasons explained in this Order, the respondent’s motion to dismiss the petition for a writ of habeas corpus, dkt. [11], is granted and the action is dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. Mr. Hatton’s motion to strike the motion to dismiss, dkt. [21], is denied. Mr. Hatton’s motion to set hearing, dkt. [14], concerns his desire to present additional evidence on the merits of his claims and is denied because the Court is not able to reach the merits of his claims because his petition is untimely.

         I. Background

         On January 17, 2013, Mr. Hatton pleaded guilty to one count of child molesting and was sentenced to an aggregate of 20 years of incarceration with five years suspended to probation. Dkt. 12-1. He did not appeal. On June 28, 2013, Mr. Hatton filed a motion to modify his sentence which was denied the same day it was filed. He did not timely appeal this judgment, and, when he sought permission to file a belated appeal, his request was denied. Mr. Hatton filed a second motion to modify his sentence on June 5, 2014, which was denied on June 10, 2014. Id.

         Mr. Hatton then filed a petition for post-conviction relief on December 1, 2014, which was denied on September 7, 2016. Mr. Hatton appealed and the Indiana Court of Appeals reversed, holding that the post-conviction court erred by failing to have a hearing or otherwise receive evidence. Dkt. 12-2. Mr. Hatton’s post-conviction petition was reinstated and remained pending until it was again denied on March 15, 2018. Dkt. 12-3. Mr. Hatton appealed, and the Indiana Court of Appeals affirmed the denial of his petition on January 17, 2019. Dkt. 12-4. Mr. Hatton’s petition to transfer to the Indiana Supreme Court was denied on April 11, 2019. He did not seek a writ of certiorari in the Supreme Court of the United States. Mr. Hatton signed the instant petition for a writ of habeas corpus seeking federal collateral review of his conviction on April 24, 2019. 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, as part of 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

         Mr. Hatton’s conviction and sentence became final on February 19, 2013, when the time to file a notice of appeal expired 30 days after his sentencing. 28 U.S.C. § 2244(d)(1)(A).[2] The one-year period of limitation began running on February 20, 2013. The limitations period continued to run until June 10, 2013, when it was tolled for one day while Mr. Hatton’s first motion to modify sentence was pending. At that time, 131 days had elapsed. The limitations period resumed running until it expired on February 17, 2014. The petitioner filed a second motion to modify sentence on June 5, 2014, but his limitations period had already expired. De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) (“[A] state proceeding that does not begin until the federal year has expired is irrelevant [for tolling purposes].”).

         Although 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), the time period expired before Mr. Hatton filed his state petition for post-conviction relief on December 1, 2014.

         Mr. Hatton signed and mailed his federal habeas petition on April 24, 2019, more than five years after the one-year limitations period had expired. Therefore, his petition is untimely. The following chart illustrates this:

Limitations Period Begins

February 20, 2013

365 days left in limitation period

First Motion to Modify Sentence Filed

June 10, 2013

255 days left in limitation period

First Motion to Modify Sentence Denied

June 10, 2013

255 days left in limitation period

Federal Habeas Petition Due

February 21, 2014

0 days left in limitation period

State Post-Conviction Filed (statute of limitations expired)

December 1, 2014

Federal Habeas Petition Mailed

April 24, 2019

5 years, 62 days beyond limitation period

         Mr. Hatton asserts in his reply that he is entitled to equitable relief because his attorney failed to file a direct appeal and failed to provide him with a copy of his file. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010). These two “elements” are distinct. Menominee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 756 (2016). The diligence element “covers those affairs within the litigant’s control; the extraordinary-circumstances prong, by contrast, is ...


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