UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOHN DUMITRU, )

)

Petitioner, )

) Case No. 3:14-CV-534 JD

v. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254 by John Dumitru.

In it he challenges his convictions and 100 year sentence1 by the Starke Circuit Court on June 25,

2001, under cause number 75C01-0004-CF-27. Though he filed this case pro se, the court

subsequently appointed Michael Parkinson to represent him pursuant to the Criminal Justice Act,

18 U.S.C. § 3006A(a)(2)(B), “because without the assistance of counsel in this case, the court

[would have been] unable to assemble the facts and arguments necessary to know whether Dumitru’s

claims ha[d] been properly addressed.” DE 21 at 2. Micheal Parkinson is an experienced habeas

corpus litigator who has appeared before this court in 32 habeas corpus cases during the two decades

recorded in the court’s CM/ECF computer records. The court appreciates his able review of the facts

in this case and his presentation of a Traverse. Though this order denies habeas corpus relief, his

assistance has focused the legal issues involved in this case and made it possible for the court to be

confident that they have been properly addressed. 

1

 “The trial court sentenced Dumitru to sixty years for [his step-daughter]’s murder, forty years for the attempted

murder of [his wife], two years each for the neglect of a dependent convictions, and one year for the resisting law

enforcement conviction. The trial court ordered the sentences for murder and attempted murder to be served

consecutively, for a total executed sentence of 100 years. Dumitru v. State, 75A05-0108-CR-384 (Ind. Ct. App. March

28, 2002), 13-6 at 4. 
Dumitru raises six grounds for relief in his habeas corpus petition. DE 5 at 3-9. In the Return,

the Respondent argues that the court cannot consider the merits of those claims because the petition

is untimely. Habeas Corpus petitions are subject to a strict one year statute of limitations.2

 The

statute provides four possible dates from which the limitation period could begin to run. Of those,

the Respondent argues that the court should apply 28 U.S.C. § 2244(d)(1)(A) and calculate the 1-

year period of limitation from the expiration of the time for filing a petition for transfer with the

Indiana Supreme Court. In his Traverse, Dumitru acknowledges that his petition is untimely. He

does not disagree with the applicability of § 2244(d)(1)(A). Neither does he disagree that his

conviction became final when the time for filing a petition to transfer expired.

The Court of Appeals of Indiana finished with Dumitru’s direct appeal on March 28, 2002.

DE 13-1 at 2. Thus, the deadline for filing a petition to transfer ended3 on April 29, 2002, and the

limitation period began the next day. It then ran until Dumitru filed a post-conviction relief petition

on March 20, 2003. DE 13-1 at 9. While the post-conviction relief petition was pending, the

2

 28 U.S.C. § 2254(d) provides that:

(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.

3

 See Indiana Rules of Appellate Procedure 57.C. which provides that a notice of appeal must be filed within

30 days. See also Indiana Rules of Appellate Procedure 25.B. which provides that when the last day is a non-business

day, the deadline expires the next business day. 

2
limitation period was tolled pursuant to 28 U.S.C. § 2244(d)(2). However, before it was tolled, 324

days had elapsed and Dumitru had only 41 days remaining.4 The tolling ended on December 5, 2013,

when the Indiana Supreme Court denied transfer in Dumitru’s post-conviction appeal. DE 13-3 at

2. The 1-year period of limitation then began again, and expired 41 days later on January 15, 2014.

The parties agree that this habeas corpus proceeding was not timely filed because Dumitru did not

file a habeas corpus petition by that date. 

On March 12, 2014, Dumitru mailed a document to this court which was captioned, “Motion

for Investigation.” DE 1. In it, he requested an “investigation before he files the Habeas Corpus

Petition in the Court . . ..” Id. at 5. As that filing made clear, it was not “an application for habeas

relief seeking an adjudication on the merits of the petitioner’s claims . . ..” Woodford v. Garceau,

538 U.S. 202, 207 (2003). Therefore it did not constitute a habeas corpus petition5

 to which a

subsequent filing could relate back. See Mayle v. Felix, 545 U.S. 644, 654 (2005) (The principles

of “relation back” embodied in Federal Rule of Civil Procedure 15 apply to habeas corpus cases.). 

On April 18, 2014, the clerk received Dumitru’s habeas corpus petition. DE 5. In the petition,

Dumitru declared under penalty of perjury that he signed it on January 17, 2014. Inmates are entitled

4

 When necessary, the 1-year period of limitation is counted as (and divided into) days. See Holland v. Florida,

560 U.S. 631, 638 (2010) (“At that point, the AEDPA federal habeas clock again began to tick – with 12 days left on

the 1-year meter.”)

5

 The docket sheet shows that Dumitru began this case (DE 1) by filing a “habeas corpus petition.” The clerk

docketed the “Motion for Investigation” that way because it made reference to habeas corpus and was not filed in an

existing case. Doing so was an administrative decision which allowed the court to review the filing as a new case.

However, after examining the document, the court clarified in its order (DE 2) that it was not a habeas corpus petition.

3
to the mailbox rule,6

 but the petition does not say when it was mailed.7 However, it is clear that it

was not mailed (nor could the completed petition have even been signed) on January 17, 2014,

because it includes multiple references to events which occurred after that date. The petition refers

to a letter from the Indiana Department of Insurance dated March 28, 2014, and that letter is

attached. DE 5 at 7 and DE 5-1 at 21. The petition also makes one other reference to events in March

2014. DE 5 at 9. Also attached to the petition is a copy of the Motion for Investigation (the first

filing in this case, DE 1) with its certificate of service dated March 12, 2014, DE 5-1 at 18; a

“Complaint for Investigation” dated January 28, 2014, which was sent to the United States

Attorney’s office, DE 5-1 at 19; and a copy of this court’s order dated March 20, 2014. DE 3 and

DE 5-1 at 27. Thus, the petition could not have been mailed before March 28, 2014, but likely

several days after that since the attached March 28, 2014, letter from the Indiana Department of

Insurance was mailed from Indianapolis, Indiana, to Dumitru at the Indiana State Prison in Michigan

City, Indiana. Therefore, the petition was at least two and a half months late. 

A.

In his Traverse, Dumitru argues that the court should excuse the untimeliness of his petition

because it would be a fundamental miscarriage of justice if the court did not address the merits of

his claims. This is an equitable doctrine which can excuse procedural default. See Weddington v.

Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). In order to demonstrate a fundamental miscarriage of

6 Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001) (“We need not decide here whether there is any

kind of paper, or any circumstance, under which a district court would be entitled to hold a pro se prisoner litigant to an

actual receipt standard, but we are confident that this would be an exceptional situation.”). 

7

In his Traverse, Dumitru acknowledges that even if he had mailed the habeas corpus petition on January 17,

2014, it would still have been untimely. 

4
justice, the petitioner must prove that “a constitutional violation has resulted in the conviction of one

who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). 

In McQuiggin v. Perkins, 569 U.S. __, __; 133 S. Ct. 1924, 1931-33 (2013), the United

States Supreme Court recognized that actual innocence can excuse the untimeliness of a habeas

corpus petition. However, this is a very difficult standard to meet. 

To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we

repeat, a petitioner must show that it is more likely than not that no reasonable juror

would have convicted him in the light of the new evidence. Unexplained delay in

presenting new evidence bears on the determination whether the petitioner has made

the requisite showing. 

McQuiggin, 133 S. Ct. at 1935 (quotation marks and citation omitted). A petitioner who asserts

actual innocence “must demonstrate innocence; the burden is his, not the state’s . . ..” Buie v.

McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). Furthermore, actual

innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523

U.S. 614, 623 (1998). To support a claim of actual innocence the petitioner must come forward with

“new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence – that was not presented at trial,” id., and must show that “in

light of new evidence, it is more likely than not that no reasonable juror would find him guilty

beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537 (2006). Because of the difficulty of

meeting this standard, such claims are “rarely successful.” Schlup, 513 U.S. at 324.

In an attempt to meet this standard, Dumitru argues:

Much of Petitioner’s claims on the merits involve his disability in the English

language. He alleges that because his attorneys failed to secure a translator, he was

seriously hindered in his own defense. He states that his attorneys failed to present

testimony that Dumitru could not understand or communicate in the English

language, and therefore had not knowingly confessed to the charged crimes; failed

to interview the available witnesses with a certified Romanian interpreter; was forced

5
to trial when Dumitru had limited English proficiency and did not have a fair trial;

failed to contact the Romanian Embassy; [and] failed to contact the Romanian

consulate which would have provided free interpreters. 

Traverse, DE 38 at 3 (quotation marks and citations omitted). 

None of these arguments are new. Dumitru testified during his trial and the jury heard him

answer numerous questions about his language skills. Trial Record at 679-740. During his criminal

trial, a Romanian interpreter translated the proceedings for Dumitru. See e.g. Trial Record at 490

and 568. When Dumitru testified, the interpreter translated the questions asked of him, but the court

permitted Dumitru to answer in either Romanian or English. Id. at 678. His defense counsel

explained that he did this to “show that he has trouble with the English language.” Id. Then during

closing argument, defense counsel reminded the jury that “John Dumitru whose first language is

Rumanian . . . needs a translator for this trial . . ..” Id. at 802. Additionally, claims about Dumitru’s

difficulty with English were raised and adjudicated during his direct appeal. The Court of Appeals

of Indiana found that “his English is described as ‘broken,’” Dumitru v. State, 75A05-0108-CR-384

(Ind. Ct. App. March 28, 2002), 13-6 at 3, but that this did not impair his ability to conduct various

legal transactions in English.

The State presented evidence that Dumitru became a naturalized American

citizen in 1988, his primary residence has been in the United States since 1982, he

communicates in English with friends, acquaintances and business associates, and

he listens to English speaking radio programs. In addition, Dumitru had employed

an attorney on four prior occasions. Indeed, Dumitru previously pleaded guilty to a

crime, and he had told that trial court that he understood his rights before entering

his plea. And despite Dumitru’s testimony that he did not understand legal terms,

during his tape-recorded statement to Detective Lawson, Dumitru used the term

“consent” with reference to his effort to gain permission to bring someone to the

United States from Romania. Finally, we find it telling that when Dumitru applied

for a driver’s license in 1992 and had trouble understanding some of the questions

on the driver’s examination, he asked an employee with the BMV to explain those

questions. Although that employee spoke no Romanian, Dumitru testified that she

was able to explain the questions in a way that he could understand them. By

6
contrast, here, when Detective Lawson asked Dumitru whether he understood each

sentence of the Miranda rights card and waiver form, Dumitru replied affirmatively

every time and never asked for an additional explanation of terms.

Dumitru v. State, 75A05-0108-CR-384 (Ind. Ct. App. March 28, 2002), 13-6 at 6-7. In deciding this

habeas corpus proceeding, this court must presume the facts set forth by the State courts are correct.

28 U.S.C. § 2254(e)(1). It is Dumitru’s burden to rebut this presumption with clear and convincing

evidence. Id. Here, he has not done so. 

Nevertheless, even if these language issues were new and he had conclusively demonstrated

that he was incapable of understanding English, none of that would demonstrate that he was

factually innocent of these crimes. Nothing about Dumitru’s lack of English proficiency (even if

totally lacking) undermines the evidence of his guilt. Here is how the Court of Appeals of Indiana

explained the facts of this case.

On the morning of April 23, 2000, Dumitru was at home with his wife,

Mariana, his teenaged step-daughter, Liliana, his two young sons, and his infant

daughter. Dumitru drank some brandy, and his friend James Clemons came by for

a visit. While Dumitru and Clemons talked, Liliana sat at the kitchen table with them.

After Clemons left, Dumitru became angry with Liliana and told her that it was rude

of her to sit and listen to his conversation with Clemons. Dumitru yelled at Liliana,

and Mariana intervened, telling Dumitru to leave Liliana alone. Dumitru became

angrier, and he and Liliana were yelling at each other. Liliana eventually left the

kitchen, but Dumitru was still yelling. Mariana took Dumitru’s glass and threw the

brandy in his face. Then Mariana went out to the garage, found Dumitru’s bottle of

brandy, and smashed it on the ground. Mariana also found a dirty diaper and threw

it against a window where Dumitru was standing inside the house.

While Mariana was outside sweeping up the broken glass, she heard Liliana

scream. Mariana ran back into the house and found Liliana lying motionless on the

living room floor. Dumitru was standing nearby holding a rifle. Mariana asked

Dumitru what he had done, but he did not respond. Mariana then knelt down and

tried to determine whether Liliana was breathing, and Dumitru hit Mariana on the

head with the rifle butt. Dumitru then hit Mariana twice more, on her hip and ankle.

But Mariana was able to run out of the house, and she sought help from a neighbor,

who telephoned law enforcement. 

When deputies from the Starke County Sheriffs Department arrived, Dumitru

would not let them into the house. Dumitru was standing at a window holding his

7
two young sons. After an hour-long standoff, deputies forced their way into the

house, found Liliana lying in a pool of blood, and arrested Dumitru. Liliana was

taken to a nearby hospital, where she died two days later.

At the Starke County Jail, Detective Ron Lawson read Dumitru his Miranda

rights. Dumitru is Romanian, and he speaks both Romanian and English, but his

English is described as “broken.” As Detective Lawson read the Advice of Rights

and waiver form to Dumitru in English, Detective Lawson stopped at the end of each

sentence and asked Dumitru whether he understood what had been read to him.

Dumitru answered affirmatively each time. After Dumitru signed the waiver form,

Detective Lawson took Dumitru’s tape-recorded statement. Dumitru admitted that

he had struck Liliana and Mariana with his rifle. A deputy administered a

breathalyzer test, which indicated that Dumitru’s blood alcohol content was .08%.

Dumitru v. State, 75A05-0108-CR-384 (Ind. Ct. App. March 28, 2002), 13-6 at 2-3. If the jury

believed that Dumitru was unable to communicate in English, they could have discredited his

confession as meaningless. However, the absence of his confession does not undermine the other

evidence against him nor demonstrate factual innocence. Even without his confession, there was

more than enough evidence to have found him guilty. His wife testified that after hearing her

daughter scream, she rushed into the house and found Dumitru standing over her unconscious body

with a rifle. Trial Record at 206-07. She testified that Dumitru then hit her with the rifle three times

before she ran from the house. Id. at 208-12. His neighbor testified that Dumitru’s wife was bleeding

from the head as she ran screaming from the house. Id. at 117. A Starke County Sheriff’s Deputy

testified that when he arrived at the house in response to a 911 call, he saw Dumitru standing at a

window holding a rifle. Id. at 151-55. The Starke County Sheriff testified that when he entered the

house after negotiating with Dumitru in English, he saw the daughter lying on the floor with blood

on her head. Id. at 286-95 and 304. The emergency room physician testified that when the daughter

arrived at the Hospital, she had a depressed skull fracture and he saw some of her brain on the sheet.

Id. 354-57. The pathologist testified that the daughter had been struck in the head at least three

times. Id. at 577. He testified that the depressed skull fracture was inflicted while the head was

8
stationary – such as laying on the floor – and the size and shape of the injury was consistent with

a blow from the butt of a gun. Id. at 578-80. None of this evidence, nor any of the other testimony

about these crimes, is in anyway dependant on whether Dumitru can (or cannot) communicate in

English. Therefore he has not demonstrated that he is factually innocent and it would not be a

fundamental miscarriage of justice to find that this habeas corpus petition is untimely. 

B.

In his Traverse, Dumitru also argues that the court should excuse the untimeliness of his

petition because 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). 

Dumitru argues that the extraordinary circumstance in this case is “the disability of petitioner

as to the English language . . ..” DE 38 at 2. However, he has not submitted, nor even described, any

evidence which could prove that language difficulties prevented him from submitting a timely

habeas corpus petition before the deadline expired. The Court of Appeals of Indiana found that he

was a naturalized American citizen whose English proficiency was sufficiently developed for him

to conduct various legal transactions. As previously explained, the court must accept that factual

finding because Dumitru has not rebutted it. See 28 U.S.C. § 2254(e)(1). 

The record shows that, Dumitru’s friend testified that he had known him for more than a

decade and had always spoken with him in English. Trial Record at 56-57 and 385-86. That friend

9
also testified that Dumitru wrote a letter in English and was generally able to read and understand

English newspapers. Id. at 60-62. An elementary school principal testified that she was able to

communicate with Dumitru in English without an interpreter during four meetings at the school. Id.

at 64. Dumitru testified that he was able to communicate with his doctors in English. Id. at 24. At

his post-conviction relief hearing, on June 8, 2012, he argued and testified in English without an

interpreter. Post-Conviction Record at 21. He testified that he has limited writing ability, but is able

to answer questions in English. Id. at 26. He testified that he wrote many pages in English and sent

them to the Indiana Judicial Qualifications Commission. Id. at 34-35. He testified that he wrote in

English the one page letter (numbered 2) that was introduced at the hearing. Id. at 28 and 34. That

letter says, in part, “Dumitru believe when arrest him must give his right to talk Attorney and

Interpreter before say anything for no further Questions, He knew I am Romanian, he knew I needs

Attorney by Law says, why he disobey the Law?” Id. at Exhibit 2. The phrasing of that sentence

(and the rest of the letter) is not unintelligible. Dumitru understands the Miranda issue that he is

explaining and that sentence fairly communicates that issue to the reader. The post-conviction relief

hearing was both transcribed and recorded. See CD recording included with Post-Conviction Record

transcript. The Court of Appeals observed that “his English is described as ‘broken.’” Dumitru v.

State, 75A05-0108-CR-384 (Ind. Ct. App. March 28, 2002), 13-6 at 3. Listening to that recording

confirms that observation. Though English communication for (and with) Dumitru is more difficult

because he is not a native English speaker, the record in this case demonstrates that those difficulties

do not prevent him from communicating in English. 

The record also demonstrates that despite those language difficulties, he was not impeded

in his ability to litigate. From 2003 to 2013, he prosecuted or appealed the denial of his post10
conviction relief petition – including an interlocutory appeal and seeking transfer to the Indiana

Supreme Court. DE 13-1 and 13-3. He filed a habeas corpus petition in 2004. Dumitru v. Davis,

3:04-CV-438 (N.D. Ind. filed June 28, 2004). He filed a civil rights lawsuit in 2005. Dumitru v.

Matsey, 2:05-CV-308 (N.D. Ind. filed August 16, 2005). He filed and appealed another civil rights

lawsuit in 2006. Dumitru v. Winfrey, 1:06-CV-417 (S.D. Ind. filed March 13, 2006), Dumitru v.

Winfrey, 3:06-CV-309 (N.D. Ind. filed May 11, 2006), and Dumitru v. Winfrey, 06-2828 (7th Cir.

filed June 28, 2006). In 2001, he appealed his divorce decree and in 2002 he sought re-hearing

before the Court of Appeals of Indiana and then transfer to the Indiana Supreme Court. Dumitru v.

Dumitru, 75A03-0201-CV-00011 (Ind. Ct. App. filed November 15, 2001). In 2007, he again

appealed his divorce proceeding and in 2008 he sought reinstatement and then petitioned to transfer

to the Indiana Supreme Court. Dumitru v. Dumitru, 75A05-0704-CV-00235 (Ind. Ct. App. filed

April 23, 2007). In 2006, he filed a civil lawsuit LaPorte County, Dumitru v. Babu, 46D01-0610-MI165 (LaPorte Superior Court), and another in Allen County, Dumitru v. Czaja, 02C01-0610-CT-84

(Allen Circuit Court). The following year, in 2007, he filed appeals in both of those State court civil

cases. Dumitru v. Babu, 46A03-0701-CV-00057 (Ind. Ct. App. filed January 3, 2007) and Dumitru

v. Czaja, 02A04-0702-CV-00084 (Ind. Ct. App. filed January 12, 2007).8

Dumitru testified that he had the assistance of other inmates to prepare and file many

documents. Post-Conviction Record at 27-28 and 34. However, given his ability to communicate

in English (both orally and in writing), as well as the extent and duration of his litigation activities,

there is no indication that his difficulty in communicating in English was an extraordinary

8

 Indiana appellate Chronological Case Summaries for all cited cases are available at Clerk of the Appellate

Courts, (January 12, 2016, name search by litigant John Dumitru), https://publicaccess.courts.in.gov/docket/.

11
circumstance which prevented him from timely filing a habeas corpus petition before the deadline

expired.

The petition, when it was filed, was at least two and a half months late. Dumitru has not

excused the untimeliness of this petition, therefore it must be dismissed. Though this might seem

harsh, even petitions that are one day late are time barred. 

Foreclosing litigants from bringing their claim because they missed the filing

deadline by one day may seem harsh, but courts have to draw lines somewhere,

statutes of limitation protect important social interests, and limitation periods work

both ways – you can be sure [the petitioner] would not be pooh-poohing the

prosecution’s tardiness if [he] had been indicted one day after the statute of

limitations expired for [his] crimes.

United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citation omitted). See also Simms

v. Acevedo, 595 F.3d 774 (7th Cir. 2010).

C.

Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court must

consider whether to grant a certificate of appealability. When the 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. Dumitru argued that he was factually

innocent. However, he did not point to any new evidence not presented during his trial which could

possibly show that it is more likely than not that no reasonable juror could have found him guilty.

Dumitru argued for equitable tolling. However, he did not demonstrate that an extraordinary

12
circumstance prevented him from filing a timely habeas corpus petition. 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 these reasons, the court DISMISSES this habeas corpus petition because it is untimely

and DENIES a certificate of appealability.

SO ORDERED.

ENTERED: January 20, 2016

 /s/ JON E. DEGUILIO 

Judge

United States District Court

13