United States District Court, S.D. Indiana, Indianapolis Division
TIMOTHY N. HATTON, Petitioner,
ORDER GRANTING MOTION TO DISMISS PETITION FOR A WRIT
OF HABEAS CORPUS AND DENYING CERTIFICATE OF
EVANS BARKER, JUDGE.
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
The motion is now ripe for review.
reasons explained in this Order, the respondent’s
motion to dismiss the petition for a writ of habeas corpus,
dkt. , 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.
, is denied. Mr. Hatton’s motion
to set hearing, dkt. , 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
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.
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.
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)).
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). 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].”).
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.
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
December 1, 2014
Federal Habeas Petition Mailed
April 24, 2019
5 years, 62 days beyond limitation period
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,