IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DALLAS WASHINGTON, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:12-CV-003

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on a petition under 28 U.S.C.

Paragraph 2254 for Writ of Habeas Corpus by a person in State

Custody, filed by Dallas Washington, a pro se prisoner, on December

29, 2011, and entered into the docket on January 4, 2012 (DE #1). 

For the reasons set forth below, the petition is DISMISSED WITH

PREJUDICE.

BACKGROUND

In deciding the petition, the Court must presume the facts set

forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It

is Washington’s burden to rebut this presumption with clear and

convincing evidence. Id. In 1985, Washington was convicted of

rape, robbery, and criminal confinement in Marion County, Indiana,

under State v. Washington, Cause No. CR 85-053B. The Indiana

Supreme Court set forth the facts underlying Washington’s
convictions as follows:

On January 27, 1985, at approximately 7:20 a.m., N.E.,

the victim in this case, was awakened by a flashlight

directed at her as she slept in her bed. Although the

sun had not yet come up, the room was partially lighted

by outside light coming through the window. Upon

awakening, she observed a man whom she later identified

as appellant brandishing a knife and holding a

flashlight.

When she asked appellant what he was doing there, he ran

from the bedroom into the kitchen. The victim

immediately jumped out of bed and ran toward the living

room where her husband, who was an invalid, was asleep in

a chair. She then observed that appellant had not left

her home as she had hoped, but was still in her kitchen. 

At that point, appellant told her to return to the

bedroom or he would “kill that old man in the chair.” 

She returned to the bedroom followed by appellant. 

Appellant then raped her and took several items of

personal property from the home.

The victim was able to give a detailed description of her

assailant to the police, including the type of glasses,

gloves, and clothing that appellant was wearing. After

appellant left, it was discovered that the front window

in the home had been broken and the iron bars covering

the window had been torn away.

After viewing numerous photographs at the police station,

the victim picked out the photograph of appellant. She

subsequently identified him at a lineup conducted at the

police station.

Washington v. State, 511 N.E.2d 452, 452-53 (Ind. 1987). Following

a jury trial he was convicted of the charges, and also found to be

a habitual offender. Id. at 452. He was sentenced to an aggregate

term of 70 years. Id.

He appealed, raising the following arguments: the trial court

erred in admitting certain evidence; the trial court erred in

denying his motion for a mistrial based on a witness’s reference to

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his involvement in an unrelated crime; and the evidence was

insufficient to support the jury’s verdict. Id. at 452-54. In

August 1987, the Indiana Supreme Court affirmed Washington’s

convictions. Id. at 454. He did not seek review in the United

States Supreme Court. (See DE #1 at 1.)

In 1996, Washington filed a petition for post-conviction

relief. Washington v. State, No. 49A02-1007-PC-801, slip op. at *3

(Ind. Ct. App. July 13, 2011). The petition was dismissed on

September 27, 1996. (DE # 15-3 at 3.) In July 2006, Washington

filed another post-conviction petition. Washington, No. 49A02-

1007-PC-801, slip op. at *3. The public defender was appointed to

represent him but subsequently withdrew. Id. at *3-4. On June 12,

2008, the trial court granted Washington’s motion to withdraw the

petition without prejudice. (DE # 15-3 at 7.) 

On April 22, 2009, Washington filed a petition for writ of

habeas corpus in state court. (Id. at 8.) The court construed

this filing as a post-conviction petition under state law;

following an evidentiary hearing, the court denied the petition,

finding that his claims were untimely and otherwise without merit. 

Washington, No. 49A02-1007-PC-801, slip op. at *4. Washington

appealed, raising the following arguments: the trial court erred in

treating his habeas petition as a petition for post-conviction

relief; his sentence was erroneous because the habitual offender

enhancement was not attached to a specific conviction; there were

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errors in the abstract of judgment; and his claims were timely. 

(See DE 15-5 at 5.) The Indiana Court of Appeals affirmed the

denial of post-conviction relief. Washington, No. 49A02-1007-PC801, slip op. at *4-11. Washington sought transfer to the Indiana

Supreme Court, but his petition was denied. (DE #15-4 at 6.) He

did not seek review in the United States Supreme Court. (DE #1 at

2.)

On December 29, 2011, Washington tendered his federal petition

to prison officials for mailing. (DE # 1 at 5.) He claims as

follows: (1) he is being held on an expired sentence because the

trial court imposed a sentence of 40 rather than 70 years; (2) the

post-conviction court erred in treating his state habeas petition

as a petition for post-conviction relief; (3) as a result of errors

in his abstract of judgment, he was only required to serve 40 years

in prison; and (4) the habitual offender sentencing enhancement was

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improper because it was not attached to any particular conviction.1

(DE #1 at 4.) 

DISCUSSION

The respondent argues that Washington’s petition is untimely

by several years. (DE #16 at 5-8.) Under the Anti-Terrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas

petitions are subject to a strict one-year statute of limitations,

stated as follows:

(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;

1 The legal bases of some of Washington’s claims are

difficult to discern, but errors in the post-conviction

proceedings would not entitle him to federal habeas relief, nor

would errors of state law governing sentencing procedures or

abstracts of judgment. See Estelle v. McGuire, 502 U.S. 62, 67

(1991) (errors of state law do not warrant federal habeas

relief); Pennsylvania v. Finley, 481 U.S. 551 (1987) (errors in

state post-conviction proceedings do not warrant federal habeas

relief); Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996)

(“[E]rrors in state collateral review cannot form the basis for

federal habeas corpus relief.”); see also Robinson v. State, 805

N.E.2d 783, 792, 794 (Ind. 2004) (observing that an abstract of

judgment is simply “a form issued by the Department of Correction

and completed by trial judges for the convenience of the

Department” and is not itself the “judgment of conviction”). The

Court presumes for purposes of this opinion, and the state does

not argue otherwise, that the petition contains at least some

cognizable federal claims.

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(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;

©) 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.

28 U.S.C. § 2244(d).

Because Washington’s convictions became final prior to the

enactment of AEDPA, he had until April 24, 1997, to pursue federal

habeas relief, absent any period of tolling. Newell v. Hanks, 283

F.3d 827, 832-33 (7th Cir. 2002). Washington filed a postconviction petition in state court sometime in 1996, which was

denied in September 1996.2 He had several months remaining to seek

federal habeas relief, but he did not do so. Nor did he file

2 This filing was not part of the official records submitted

by the respondent. Washington submits what purports to be a copy

of his 1996 filing, and it challenges the propriety of his

transfer within the prison rather than his underlying

convictions. (See DE #20 at 14-17.) Unless the petition

attacked Washington’s convictions or sentence, it would not

constitute a “collateral review” proceeding for tolling purposes.

See Price v. Pierce, 617 F.3d 947 (7th Cir. 2010). Even if it

did, as explained above Washington’s federal petition would still

be untimely by several years.

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anything in state court that would have tolled the deadline for

seeking federal habeas relief. Instead, he waited until July 2006

to file a petition for post-conviction petition in state court. 

Washington, No. 49A02-1007-PC-801, at *3. By that time, the oneyear deadline for seeking federal habeas relief had long since

expired. The state court’s subsequent denial of post-conviction

relief did not “restart” the federal clock, nor did it “open a new

window for federal collateral review.” De Jesus v. Acevedo, 567

F.3d 941, 943 (7th Cir. 2009). Accordingly, the petition was

untimely by several years.

Washington does not directly respond to the state’s timeliness

argument in his traverse,3 and instead he complains that the state

briefed “other issues that have nothing to do with the issues

presented by said Petitioner.” (DE #20 at 4.) However, unless

Washington’s petition meets the threshold requirement of

timeliness, the Court cannot reach his claims on the merits.

Elsewhere in his traverse, Washington appears to argue that

his claims were not available until 2005, because that is when his

sentence allegedly expired. (DE #20 at 6.) Although it is not

clear, he may be attempting to invoke 28 U.S.C. § 2244(d)(1)(D). 

Under that provision, a federal petition must be filed within one

3 Washington labeled his traverse “Supplemental to Traverse

in Reply to State’s Return to Order to Show Cause.” (DE #20.) 

This is the only document he filed in response to the return, and

it is unknown why he refers to it as a supplement.

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year of “the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise of

due diligence.” 28 U.S.C. § 2244(d)(1)(D). There is a

distinction, however, between discovery of the factual predicate

for a new claim and discovery of evidence that supports a claim

already known to the petitioner; Section 2244(d)(1)(D) does not

restart the time for seeking federal habeas relief simply because

additional evidence for an existing claim becomes available. 

Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005). 

Furthermore, the time runs from the date the factual predicate

could have been discovered through diligent inquiry, not when it

was actually discovered or when its significance realized. Owens

v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). 

Here, Washington’s claims all center on his contention that

the trial court made technical errors at sentencing, such that he

should only have to serve 40 years in prison. (See DE #1 at 2-3.) 

Although these claims may have taken on new urgency for him in 2005

when he believed his sentence had expired, they have been available

since the date of sentencing more than 20 years ago. Indeed, in

support of his claims Washington submits a copy of a minute sheet

prepared in 1985. (DE #20 at 13.) Furthermore, even accepting his

contention that the claims became available in January 2005 (see DE

#1 at 3), he did not file a federal habeas petition or seek postconviction relief in state court until July 2006, well over a year

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later. Accordingly, 28 U.S.C. § 2244(d)(1)(A) is of no assistance

to him. The petition is untimely and must be dismissed.

Alternatively, the state argues that if Washington could

establish that his petition was timely filed, his claims are

procedurally defaulted in any event. (DE #16 at 8-12.) Under the

AEDPA, the state courts must be given the first opportunity to

address and correct violations of their prisoner’s federal rights. 

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Perruquet v.

Briley, 390 F.3d 505, 514 (7th Cir. 2004). For that opportunity to

be meaningful, the petitioner must fairly present his

constitutional claims in one complete round of state review, either

on direct appeal or on post-conviction review. Baldwin v. Reese,

541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845. The

companion procedural default doctrine precludes a federal court

from reaching the merits of a federal claim when: (1) the claim was

presented to the state courts and was denied on the basis of an

adequate and independent state law procedural ground; or (2) the

claim was not presented to the state courts and it is clear the

claim would be barred under state law. Coleman v. Thompson, 501

U.S. 722, 735 (1991); Perruquet, 390 F.3d at 514. 

Here, the Indiana Court of Appeals did not reach the merits of

Washington’s sentencing claims, instead concluding that they were

untimely under state law because they were available when he filed

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his earlier post-conviction petitions.4 See Washington, No. 49A02-

1007-PC-801, slip op. at *9-10. As these claims were denied on an

adequate and independent state procedural ground, federal habeas

review is barred. See Coleman, 501 U.S. at 729-30. Therefore, even

if these claims were timely, they could not be reached on the

merits. Accordingly, the petition must be dismissed.

Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the

Court must either issue or deny a certificate of appealability in

all cases where it enters a final order adverse to the petitioner. 

To obtain a certificate of appealability, 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 quote marks and citation omitted).

As is fully explained above, Washington’s habeas petition is

untimely by several years, and his claims are otherwise

procedurally defaulted. Nothing before the Court suggests that

4 Although the appellate court did not reach these claims,

the trial court found no merit to them. The court pointed out

that the minute sheet from sentencing clearly stated that the

habitual offender enhancement attached to the rape conviction,

and that the court was imposing an aggregate sentence of 70

years. (See DE #15-5 at 18.) If the Court could reach the

merits of Washington’s claims, it would be his burden to rebut

this factual determination with clear and convincing evidence. 

28 U.S.C. § 2254(e)(1).

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jurists of reason could debate the outcome of the petition or find

a reason to encourage Washington to proceed further. Accordingly,

the Court declines to issue him a certificate of appealability.

CONCLUSION

For the reasons set forth above, the petition (DE #1) is

DISMISSED WITH PREJUDICE. The Court DENIES the petitioner a

certificate of appealability.

DATED: October 29, 2012 /s/ RUDY LOZANO, Judge

United States District Court

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