United States District Court

Northern District of Indiana 

NATHANIEL THOMPSON, )

)

Petitioner, )

)

vs. ) Civil Action No. 2:13-CV-122 JVB

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Nathaniel Thompson, a pro se prisoner, filed a habeas petition pursuant to 28 U.S.C.

§ 2254 challenging a state conviction. Pursuant to RULE 4 OF THE RULES GOVERNING SECTION

2254 CASES, the court is obligated to review the petition and dismiss it if “it plainly appears from

the petition and any attached exhibits that the petitioner is not entitled to relief[.]” Upon review,

Thompson’s petition is untimely and his claims barred by procedural default.

According to the petition, Thompson pled guilty in 2011 to failing to register as a sex

offender in Marion County. (DE 1 at 1.) He was sentenced to one year of probation, apparently

to be served after he served a sentence for another offense. (Id. at 1, 3-5.) He did not pursue a

direct appeal. (Id. at 1.) In October 2011 he filed a collateral attack on his conviction in state

court, and in November 2011, he separately filed a state post-conviction petition. (Id. at 1, 2.)

Both of these filings were denied in May 2012. (Id.) He appealed the denial of post-conviction

relief to the Indiana Court of Appeals, but his appeal was denied. (Id. at 1.) He did not seek relief

in the Indiana Supreme Court. (Id. at 2.)

In April 2013, Thompson filed the present petition. His claims are somewhat difficult to

decipher, but giving the petition liberal construction, he claims that his conviction violated

Double Jeopardy and Ex Post Facto principles, because he was already punished for the
underlying sex offense leading to the failure to register charge. (DE 1 at 3-4.) He further claims

that his attorney forced him to plead guilty to the charge. (Id. at 4.) Thompson acknowledges that

he did not present his claims to the Indiana Supreme Court. (Id. at 3-4.) 

Thompson’s petition is governed by the Anti-Terrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). Under AEDPA, habeas corpus petitions are subject to a strict one-year

statute of limitations:

(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 postconviction 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). 

Thompson’s claims do not implicate newly discovered evidence or a newly recognized

constitutional right, nor does he claim that a state-created impediment prevented him from filing

2
his federal petition on time. Accordingly, the provisions of 28 U.S.C. § 2244(d)(1)(A) apply.

Thompson was sentenced in March 2011, and his conviction became final when the time for

filing a direct appeal expired 30 days later. See IND. APP. R. 9(A) (notice of appeal must be filed

within 30 days of the trial court’s judgment); Gonzalez v. Thaler, 132 S. Ct. 641, 655-56s (2012)

(when a habeas petitioner does not complete all levels of state review, his conviction becomes

final when the time for seeking further review expires). Thompson had one year from that date to

seek federal habeas relief, absent any period of tolling. He initiated state collateral proceedings

in October 2011, which tolled the deadline under 28 U.S.C. § 2244(d)(2). By this time

approximately six months had elapsed on the federal clock. The deadline remained tolled until

August 2012, when the state post-conviction proceedings concluded.1 Thompson waited another

eight months, until April 2013, to file his federal petition. Therefore, the petition was untimely

by approximately two months. Thompson does not raise any grounds for excusing the

untimeliness of his petition, and instead he left the question blank when asked to explain why his

petition should be deemed timely. (See DE 1 at 5.) Accordingly, the petition is subject to

dismissal.

Even if the petition had been timely filed, Thompson’s claims are barred by procedural

default. Before considering the merits of a claim contained in a habeas petition, the court must

ensure that the state courts have been given the first opportunity to address and correct violations

of their prisoner’s federal rights. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999). For that opportunity to be meaningful, the petitioner must fairly present his

1

 Thompson states that his post-conviction appeal was denied in August 2011, but this would not coincide

with the other dates listed in the petition. (DE 1 at 1.) It appears he made a typographical error. For purposes of this

opinion the court will presume that his appeal was denied in August 2012, but the petition would be untimely using

either date.

3
constitutional claim in one complete round of state review, either on direct appeal or postconviction review. Baldwin v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845. This

includes seeking discretionary review in the state court of last resort. Boerckel, 526 U.S. at 848.

Under the companion procedural default doctrine, a federal court is precluded from reaching the

merits of a claim when either: (1) the claim was presented to the state courts and was denied on

the basis of an adequate and independent state procedural ground; or (2) the claim was not

presented to the state courts and the time for doing so has passed under state law. Coleman v.

Thompson, 501 U.S. 722, 735 (1991).

Here, Thompson acknowledges that he did not present any of his claims to the Indiana

Supreme Court. (DE 1 at 3-4.) The time for him to present his claims to the Indiana Supreme

Court either on direct appeal or in the post-conviction proceedings has long passed under state

law. See IND. APP. R. 9(A), 57(C). Because Thompson did not pursue these claims in one

complete round of state review when he had the opportunity to do so, they are procedurally

defaulted. He does not provide any grounds for excusing his procedural default, and instead he

left the questions blank when asked to explain why he did not present his claims to the Indiana

Supreme Court. (DE 1 at 3-4.) 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

4
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quote marks and citation

omitted). As explained above, Thompson’s petition is untimely and his claims procedurally

defaulted. Nothing before the court suggests that jurists of reason could debate the correctness of

these procedural rulings or find a reason to encourage Thompson to proceed further.

Accordingly, the court declines to issue him a certificate of appealability.2

For these reasons, the petition (DE 1) is DISMISSED WITH PREJUDICE pursuant to

RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES. The petitioner is DENIED a certificate

of appealability. 

SO ORDERED on May 3, 2013. s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

Hammond Division

2

 The court notes that Thompson filed a document in which he appears to complain about the medical

treatment he received for a hernia while in prison. (DE 7 at 2-3.) He requests money damages for his pain and

suffering. (Id. at 3.) Thompson cannot challenge the conditions of his confinement in a habeas proceeding, nor can

he obtain an award of money damages; the proper vehicle for pursuing such a claim is an action under 42 U.S.C.

§ 1983. See Montgomery v. Anderson, 262 F.3d 641, 643-44 (7th Cir. 2001).

5