United States District Court, N.D. Indiana, South Bend Division
LEONARD A. TAYLOR, JR., Petitioner,
v.
WARDEN, Respondent.
OPINION AND ORDER
JON E.
DEGUILIO JUDGE
Leonard
A. Taylor, Jr., a prisoner without a lawyer, was convicted of
attempted robbery while armed with a deadly weapon in cause
number 20C01-1407-F3-000003 following a guilty plea. On April
16, 2015, the Elkhart Circuit Court sentenced him to fourteen
years of incarceration. Taylor 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 on October 22, 2018. ECF 9. Despite being reminded by
the court to file his traverse by December 3, 2018 (ECF 11),
Taylor has not filed a traverse or otherwise responded.
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
18 on the habeas corpus petition sets forth the text of the
statute and asks for an explanation as to why the petition is
timely. In response, Taylor wrote:
Prisoner Taylor's guilty plea resulted from an illusory
threat he had to serve an executed sentence and was not
voluntarily and intelligently entered in violation of the
Fifth and Fourteenth Amendments to the United States
Constitution and Article One Section Twelve of the Indiana
Constitution. Continue with Taylor's counsel failed to
advise him that his sentence could be suspended but instead
advise court that it could ‘not' only applys (sic)
to offenders with a felony background which Taylor didn't
have to have him subject to ineffective assistance of counsel
and bringing fraud to trial court Rule 8.4(b) under
professional rule of conduct. Taylor is subject to being able
to file his § 2254 because he has not gone over the 1
year statute of limitations to file this form in respect of
28 U.S.C. § 2254(d).
ECF 2
at 15. Nothing in that answer or any other part of the
petition indicates State action impeded Taylor from filing a
habeas corpus petition sooner, that 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. Therefore, 28 U.S.C.
§ 2244(d)(1)(B), (C), and (D) do not establish the start
of the limitation period.
Rather,
the 1-year limitation period began to run pursuant to 28
U.S.C. § 2244(d)(1)(A) when Taylor's conviction
became final upon the expiration of the time to pursue direct
review or the expiration of the time for seeking such review.
Here, Taylor was sentenced on April 16, 2015, and he did not
file a direct appeal. ECF 9-1 at 8.[1] Thus, his conviction became
final on Monday, May 18, 2015. See Ind. App. R.
9(A)(1) (appeal must be filed within 30 days of final
judgment); see also Ind. App. R. 25(B) (if last day
of time period falls on a non-business day, the period runs
until the end of the next business day). His 1-year
limitation period began to run the next day-Taylor had until
May 18, 2016, to seek federal habeas relief or file a State
petition for post-conviction relief that would serve to toll
the federal limitations period pursuant to § 2244(d)(2).
The
limitations period was tolled when Taylor filed a
post-conviction relief petition in cause number
20C01-1604-PC-000022 on April 29, 2016. ECF 9-2 at
1.[2]
By then, 347 days of his 365 day (1-year) period of
limitation had expired and only 18 days remained. The trial
court denied the petition on May 3, 2017. Id. at 4.
Taylor filed a notice of appeal which was docketed as cause
number 20A04-1705-PC-001149 on May 31, 2017, and the trial
court's decision was affirmed by the Indiana Court of
Appeals on December 19, 2017. ECF 9-3 at 2, 4.[3] Taylor filed a
petition to transfer to the Indiana Supreme Court, which was
denied on March 15, 2018. Id. at 4. The limitations
period began running again the next day, and it expired on
April 2, 2018. Thus, when Taylor filed the instant federal
habeas petition on June 11, 2018, he was more than two months
too late.[4]
Pursuant
to Section 2254 Habeas Corpus Rule 11, the court must grant
or deny a certificate of appealability. To obtain a
certificate of appealability under 28 U.S.C. § 2253(c),
the petitioner must make a substantial showing of the denial
of a constitutional right by establishing “that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks and citation omitted). For the reasons
explained in this opinion, there is no basis for encouraging
...