UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FRANCIS L. SIMS, )

)

Petitioner, )

)

v. ) CAUSE NO.: 3:12-CV-4-TLS

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on a Habeas Corpus Petition [ECF No. 1] filed by the

Petitioner, Francis L. Sims, a prisoner proceeding pro se in this matter. The Petitioner seeks to

challenge his conviction and two hundred fifty year sentence entered by the Lake County

Superior Court under cause number 45G03-0312-FA-48. Because the Petitioner filed after the

expiration of the statute of limitations and has not provided the Court with any basis for excusing

his late filing, the Court will dismiss the Habeas Corpus Petition. 

Habeas corpus petitions are subject to a one year statute of limitations. 28 U.S.C.

§ 2244(d). The one-year period begins to 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.
28 U.S.C. § 2244(d)(1). In response to the form question asking why the petition is timely, the

Petitioner stated only, “[p]etition is within the period of limitation.” (Habeas Corpus Pet. 5, ECF

No. 1.) He does not indicate that the state prevented him from filing a habeas petition sooner or

that his claims are based on a newly recognized Constitutional right or newly discovered

evidence. Therefore, pursuant to 28 U.S.C. § 2244(d)(1)(A), the one-year period of limitation

began to run on “the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review.” 

The Petitioner was sentenced on September 16, 2006. He filed a direct appeal and his

conviction was affirmed by the Court of Appeals of Indiana on September 7, 2007. He did not

file a petition to transfer to the Indiana Supreme Court and the time for doing so expired on

October 8, 2007. See Ind. R. App. P. 57.C (petition to transfer must be filed “no later than thirty

(30) days after the adverse decision”); Ind. R. App. P. 25.B (when the last day provided for filing

a petition to transfer is a non-business day, the deadline expires at the end of the following

business day). Thus, on October 9, 2007, the one-year period of limitation began. See Gonzalez v.

Thaler, 132 S. Ct. 641, 654 (2012) (“[B]ecause [the petitioner] did not appeal to the State’s

highest court, his judgment became final when his time for seeking review with the State’s

highest court expired.”) One year later, on October 9, 2008, the time for filing a habeas corpus

petition expired. 

The Defendant initially filed a petition for post-conviction relief in state court on May 18,

2009. A pending post-conviction relief petition tolls the one-year period of limitation. 28 U.S.C.

§ 2244(d)(2). The Petitioner, however, filed his state petition after the one-year limitation period

for bringing this claim had expired. The Petitioner did not sign the instant federal habeas corpus

2
petition until November 24, 2011, more than three years after the expiration of the time for filing

a habeas corpus petition, or about one year and eight months after the deadline if the Court did

not count against him the time during which he had post-conviction petitions pending before the

state courts. Therefore, the Habeas Corpus Petition is untimely and must be dismissed.

Pursuant to Section 2254 Habeas Corpus Rule 11, the Court must consider whether to

grant or deny a certificate of appealability. 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) (quotation

marks omitted). When the court dismisses a petition on procedural grounds, the petitioner must

show (1) that reasonable jurists would find it debatable whether the court was correct in its

procedural ruling, and, (2) that reasonable jurists would find it debatable whether the petition

states a valid claim for denial of a constitutional right. Id. To obtain a certificate of appealability,

the petitioner must satisfy both components. Id. at 485. In this case, the Court found that the

Habeas Corpus Petition was not timely filed. Because there is no basis for finding that jurists of

reason would debate the correctness of this procedural ruling or find a reason to encourage him to

proceed further, a certificate of appealability must be denied. 

For the foregoing reasons, the Court DISMISSES the Habeas Corpus Petition [ECF No.

1] as untimely and DENIES a certificate of appealability on the same. 

SO ORDERED on February 6, 2012.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

3
UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

4