UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RANDY G. COBB, )

)

Petitioner, )

)

v. ) NO. 3:13 CV 312 

)

SUPERINTENDENT, )

)

Respondent. )

OPINION and ORDER

Randy G. Cobb, a pro se prisoner, filed an amended petition under 28 U.S.C.

§ 2254 challenging his 2005 attempted murder conviction in Elkhart County under

Cause No. 20C01-0407-FA-00087. (DE # 7.) 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[.]” RULE 4 OF THE RULES GOVERNING SECTION 2254

CASES.

On direct appeal, the Indiana Court of Appeals set forth the following facts

underlying Cobb’s conviction, which are presumed correct under 28 U.S.C. § 2254(e)(1): 

Jered Liechty purchased drugs from Randy Cobb at least fifteen times. In

fact,LiechtyandCobb had an agreement: Cobb would provide Liechty drugs

for his personal use in exchange for Liechty allowing a male nicknamed

“DL” to sell drugs from Liechty’s apartment located in Elkhart. On one

occasion, Cobb agreed to sell Liechty forty dollars worth of drugs on credit.

Liechty agreed to repay Cobb once he received his unemployment check,

which he anticipated would arrive by mail on October 17, 2003.

On October 17, 2003, Liechty’s unemployment check had not arrived when

he borrowed five dollars from a friend to purchase alcohol from a local liquor

store. Meanwhile, Cobb and an acquaintance, Mike Watkins, observed

Liechty walking away from the store with a bag and drove to Liechty’s

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residence. When Liechty arrived, Cobb and Watkins were in Liechty’s

bedroom waiting for him.

Cobb confronted Liechty about the $40.00 debt and asked whether the

unemployment check had arrived. Liechty informed Cobb that the check had

not arrived and Cobb became upset, complaining that if Liechty had money

to purchase alcohol then he had money to pay him. Liechty was unable to

produce the money so Cobb retrieved a handgun from his pocket and

pointed it at Liechty. Cobb pulled the triggerthree times but the gun did not

discharge. Cobb responded by saying, “God must be on your side today.”

Cobb then left the residence to retrieve a “gun that works.”

Cobb returned five minutes later with a different handgun and confronted

Liechty. Cobb fired a shot at Liechty, which hit him in his right thigh and

shattered his femur. Moments later, the two began a struggle for control of

the gun. As they wrestled, Watkins, still present at Liechty’s residence, hit

both men with a baseball bat in an attempt to separate them. At some point

during this struggle, the gun was pointed toward Liechty’s head and it

discharged again, this time striking his ear.

Cobb v. Indiana, No. 20A03-0612-CR-616, slip op. at 1 (Ind. Ct. App. Jul. 31, 2007)

(internal citations omitted). 

Following a jury trial, Cobb was convicted of attempted murder and sentenced

to 40 years in prison. (DE # 7 at 1.) He appealed, claiming that the evidence was

insufficient to support his conviction. Cobb, No. 20A03-0612-CR-616, at 1-2. On July 31,

2007, the Indiana Court of Appeals affirmed his conviction. Id. He did not seek transfer

to the Indiana Supreme Court or seek review in the U.S. Supreme Court. (DE # 7 at 1.)

On January 11, 2008, Cobb filed a post-conviction petition in state court. (DE # 8

at 71.) In August 18, 2008, he was granted leave to withdraw the petition without

prejudice. (Id.) He filed a new petition in September 15, 2008, but again sought leave to

withdraw it; the petition was dismissed without prejudice on August 5, 2009. (Id. at 72.)

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On December 6, 2010, Cobb filed a third post-conviction petition, which proceeded to

an evidentiary hearing. (Id.) The petition was ultimately denied. (Id. at 70-76.) Cobb

appealed, raising one claim: that his trial counsel was ineffective in failing to object to

one of the jury instructions. Cobb v. Indiana, No. 20A04-1203-PC-117, slip op. at 1 (Ind.

Ct. App. Sept. 26, 2012). The Indiana Court of Appeals affirmed the denial of postconviction relief. Id. at 1-2. Cobb filed a petition to transfer to the Indiana Supreme

Court, which was denied in March 2013. Cobb v. Indiana, 984 N.E.2d 1253 (Ind. Mar. 14,

2013) (Table). 

In April 2013, Cobb sought habeas relief in federal court, and later filed an

amended petition. (DE # 1, 7.) He raises three claims: his trial counsel was ineffective in

failing to object to a jury instruction; the victim committed perjury when he testified

that Cobb shot him in the ear; and the prosecutor engaged in misconduct by suborning

this allegedly perjured testimony. (DE # 7 at 3-4.) 

Cobb’s petition is governed by the provisions of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Under AEDPA, habeas corpus petitions are subject to a strict one-year statute of

limitations, set forth 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;

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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;

(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.

28 U.S.C. § 2244(d).

Upon review, Cobb’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 his federal petition on time. Accordingly, the

provisions of 28 U.S.C. § 2244(d)(1)(A) apply. Cobb’s conviction was affirmed by the

Indiana Court of Appeals in July 2007, and he did not seek further review. (DE # 7 at 1.)

Thus, his conviction became final when the time for seeking review in the Indiana

Supreme Court expired in August 2007. See IND. APP. R. 57(C)(1) (petition to transfer to

Indiana Supreme Court must be filed within 30 days of appellate court judgment);

Gonzalez v. Thaler, 132 S. Ct. 641, 655-56 (2012) (when a habeas petitioner does not

complete all levels of state review, his conviction becomes final for purposes of 28

U.S.C. § 2244(d)(1)(A) when the time for seeking further review expires). 

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Therefore, Cobb had until August 2008 to file a timely federal petition, absent

any period of tolling. Cobb had post-conviction petitions pending in state court from

January 2008 to August 2008, and again from September 2008 to August 2009, which

tolled the deadline under 28 U.S.C. § 2244(d)(2). However, after his post-conviction

petition was dismissed without prejudice in August 2009, he waited until December 6,

2010, to file a new petition. (DE # 8 at 72.) He thus had nothing pending in state court

for more than a year, during which time the federal deadline elapsed. 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) 

Cobb has not provided any grounds for excusing the untimeliness of his petition

and, instead, when asked to explain why his petition is timely, simply lists the relevant

dates. (See DE # 7 at 5.) As recounted above, however, a review of the relevant dates

shows that the petition was not timely filed. Accordingly, Cobb’s 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 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

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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 explained above, Cobb’s petition is untimely. Nothing before the court suggests that

jurists of reason could debate the correctness of this ruling or find a reason to encourage

Cobb to proceed further. Accordingly, the court declines to issue Cobb a certificate of

appealability.

For these reasons, the amended petition (DE # 7) is DISMISSED WITH

PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and the

petitioner is DENIED a certificate of appealability.

SO ORDERED.

Date: June 18, 2013

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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