IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

LANCE SCOTT BOUTTE’, )

)

Petitioner, )

)

vs. ) CAUSE NO. 1:13-CV-294

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition under 28

U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in

State Custody filed by Lance Scott Boutte’, a pro se prisoner, on

October 3, 2013. For the reasons set forth below, the court

DISMISSES this habeas corpus petition because it is untimely and

DENIES a certificate of appealability. 

BACKGROUND

Lance Scott Boutte’, a pro se prisoner, signed this habeas

corpus petition and placed it into the prison mailing system on

August 29, 2013. He is attempting to challenge his convictions for

voluntary manslaughter and aggravated battery for which he was

sentenced to a total of 55 years by the Allen Superior Court under

cause number 02D04-0003-CR-151 on July 6, 2001. Boutte’ pled guilty

and did not file a direct appeal, but he has nevertheless made
numerous efforts over the years to challenge these convictions. The

respondent argues that the petition is untimely. Boutte’ argues

that he is entitled to equitable tolling. 

DISCUSSION

Habeas Corpus petitions are subject to a strict one year

statute of limitations. 28 U.S.C. § 2244(d) provides four possible

dates from which the limitation period begins to run. 

(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.

2
The respondent argues that the court should apply § 2244(d)(1)(A)

and calculate the 1-year period of limitation starting from August

6, 2001, because that is when the conviction became final upon the

expiration of the time for filing a direct appeal.1 Boutte’ does

not explicitly dispute the use of that date nor assert the

applicability of any of the other three possible starting dates.

Rather, he argues that: 

Under equitable tolling - I was just ruled stable on

January 26, 2012 – competent to be responsible for my

actions. Belated Appeal December 7, 2011. They stated

reducing medication in 2010, because I was over medicated

from 200 mg a month injection to 25 mg a month. Haven’t

had too many problems so far. Still adjusting as

necessary under competency – DOC/Med/Psych took off

involuntary treatment ruled stable January 26, 2012.

(DE #1 at 13.) 

Boutte’ is clearly asserting an equitable tolling argument.

However, his allegation that he was over medicated also invokes §

2244(d)(1)(B) by asserting that State action impeded him from being

able to file a habeas corpus petition before January 26, 2012.

Though it is doubtful that Boutte’ could demonstrate that State

action impeded him from being able to file a habeas corpus petition

before January 26, 2012, because the petition is untimely even when

1

 The date in the respondent’s brief is August 5, 2001. (DE #5 at 7.) This

accurately calculates 30 days for filing a notice of appeal. See Indiana Rule of

Appellate Procedure 9.A. However, because August 5, 2001, was a Sunday, Boutte’

had until the following Monday – August 6, 2001 – to file a notice of appeal. See

Rule 25. 

3
using that as the starting date, the Court will calculate the 1-

year period of limitation starting on January 26, 2012.2

 

Beginning the 1-year period of limitation on January 26, 2012,

Boutte’ had until January 28, 2013,3 to file a timely habeas corpus

petition. However, he did not sign this habeas corpus petition and

2

 Boutte’ submitted numerous filings during the years in which he alleges

that he was over medicated, not competent, and unstable. He provides no

explanation for how he was able to submit so many filings to the courts in

Indiana over the years, but was unable to prepare and mail a habeas corpus

petition to this Court. The Indiana Court of Appeals provided a brief summary of

some of Boutte’s litigation history as follows:

On December 7, 2001, Boutte filed a petition for

post-conviction relief that he later amended on February 4, 2002.

The petition alleged, among other things, that Boutte did not

knowingly and voluntarily enter into the plea and that he was denied

effective assistance of counsel. On January 21, 2003, the trial

court denied the petition, and on February 17, 2003, the court

denied Boutte’s motion to correct error and motion to reconsider

sentence.

On April 2, 2003, Boutte filed an appeal from the trial

court’s denial of his petition for post-conviction relief. On

appeal, we concluded that Boutte waived review of his

post-conviction claims for failure to make a cogent argument. Waiver

notwithstanding, we addressed the merits of Boutte’s claims and

affirmed the trial court. See Boutte v. State, No. 02A03-0304-PC-137

(Ind. Ct. App. March 19, 2004).

On August 30, 2004, Boutte filed a motion to correct erroneous

sentence, which the trial court denied on August 31, 2004. Boutte

filed a motion to correct error, which the trial court denied on

September 30, 2004.

On October 18, 2004, Boutte filed a notice of appeal. On

December 7, 2005, this court ordered dismissal of the appeal. During

the interim period between the filing of the notice of appeal and

the dismissal, Boutte filed a motion for modification of sentence,

which was denied on April 12, 2005.

On August 24, 2007, Boutte filed a verified petition for

permission to file a belated notice of appeal. On October 29, 2007,

the trial court denied the petition.

On December 7, 2011, Boutte again filed a verified petition

for permission to file a belated appeal with a supporting affidavit.

The petition was denied on December 16, 2011, and a consequent

motion to correct error was denied on January 23, 2012.

Boutte v. State, 02A05-1202-CR-91, slip op. at 2-3 (Ind. Ct. App. September 7,

2012) (DE #5-12 at 2-3.)

For additional detail showing Boutte’s extensive filings during these

years, see the docket sheets and briefs filed with this record. (DE #5-1, #5-2,

#5-3, #5-7, #5-8, #5-14, #5-15, #5-16, and #5-17.) 

3 The one year ended on January 26, 2013, but that was a Saturday.

Therefore Boutte’ had until the following Monday. See Federal Rules of Civil

Procedure 6(a)(2)(C). 

4
place it into the prison mailing system until August 29, 2013. So

unless the limitation period was tolled, the petition is untimely.

Before addressing Boutte’s equitable tolling argument, the Court

will first address the statutory tolling provision of 28 U.S.C.

§ 2244(d)(2). That provision of the statute stops the clock for

those days during which a “properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending” in the State courts. 

On January 26, 2012, Boutte’ had pending a motion to correct

error asking the trial court to overturn its denial of his petition

asking for permission to file a belated appeal. (DE #5-1 at 12-13.)

When that motion was denied, he appealed to the Court of Appeals of

Indiana and then petitioned for transfer to the Indiana Supreme

Court which denied transfer on November 21, 2012. Thus, he was not

authorized to filed a belated appeal. As such, none of those

proceedings tolled the 1-year period of limitation. Cf. Powell v.

Davis, 415 F.3d 722, 726-27 (7th Cir. 2005) (“Because an

unauthorized successive petition is not considered ‘properly filed’

under Indiana law, the one-year limit was not extended under §

2244(d)(2)” while the petitioner’s request to pursue a successive

petition was pending). So too, Boutte’s request to pursue a belated

direct appeal was never authorized and so it did not toll or extend

the one-year limit either. The only other proceedings that Boutte’

had pending on or after January 26, 2012, involved his child

5
molesting conviction (DE #5-15 at 10) and his drug conviction (DE

#5-16 at 8). However, because neither of them are related to the

conviction at issue in this proceeding, neither of them tolled the

1-year period of limitation either. 

However, Boutte’ asserts that he is entitled to equitable

tolling. “[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 (2010)

(quotation marks and citation omitted). Equitable tolling is an

extraordinary remedy that is rarely granted. Obriecht v. Foster,

727 F.3d 744, 748 (7th Cir. 2013). “Petitioners bear the burden of

proving that they qualify for equitable tolling.” Taylor v.

Michael, 724 F.3d 806 (7th Cir. 2013). 

Here, Boutte’ has not even alleged, much less demonstrated,

that anything prevented him from filing a habeas corpus petition

after January 26, 2012. Boutte’ waited nineteen months after that

date before he signed this habeas corpus petition on August 29,

2013. There is simply no basis for finding that any circumstance

(much less an extraordinary one) stood in his way and prevented him

from filing a habeas corpus petition after January 26, 2012.

Neither has he alleged, much less demonstrated, that he diligently

pursued his rights. To the extent that he mistakenly believed that

seeking to file a belated direct appeal somehow prevented him from

6
also seeking habeas corpus relief, he nevertheless waited nine

months to file this habeas corpus petition after the Indiana

Supreme Court denied his petition to transfer on November 21, 2012.

“That lack of action does not show reasonable diligence, and it

does not show that extraordinary circumstances actually prevented

[him] from filing.” Taylor v. Michael, 724 F.3d 806, 811 (7th Cir.

2013). Thus, Boutte’ is not entitled to equitable tolling and this

petition must be dismissed because it is untimely. 

Finally, pursuant to Rule 11 of the Rules Governing Section

2254 Cases, the Court must consider whether to grant a certificate

of appealability. When a court dismisses a petition on procedural

grounds, the determination of whether a certificate of

appealability should issue has two components. Slack v. McDaniel,

529 U.S. 473, 484-85 (2000). First, the petitioner must show that

reasonable jurists would find it debatable whether the court was

correct in its procedural ruling. Id. at 484. If the petitioner

meets that requirement, then he must show that reasonable jurists

would find it debatable whether the petition states a valid claim

for the denial of a constitutional right. Id. As previously

explained, this petition is untimely and Boutte’ has not even

presented a colorable claim for equitable tolling. Because there is

no basis for finding that jurists of reason would debate the

correctness of these rulings or find a reason to encourage him to

proceed further, a certificate of appealability must be denied. 

7
CONCLUSION

For the reasons set forth above, the Court DISMISSES this

habeas corpus petition because it is untimely and DENIES a

certificate of appealability.

DATED: April 27, 2015 /s/RUDY LOZANO, Judge

United State District Court

8