IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOHN RICHARD )

KOCHOPOLOUS, )

)

Petitioner, )

)

vs. ) CAUSE NO. 2:14-CV-272

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, filed by Petitioner,

John Richard Kochopolous, a pro se prisoner, on October 22, 2014. 

(DE #6.) For the reasons set forth below, the petition (DE #6) is

DISMISSED WITH PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING

SECTION 2254 CASES, and the petitioner is DENIED a certificate of

appealability.

BACKGROUND

Kochopolous is serving a 12-year sentence for a operating a

vehicle with a lifetime suspension and while intoxicated, both

committed in Lake County, Indiana. State v. Kochopolous, Nos.

45G04-1169-FC-00002 and 45G04-0903-FC-30. In deciding the petition,

the court must presume the facts set forth by the state courts are

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

direct appeal, the Indiana Court of Appeals summarized the facts

underlying Kochopolous’s offenses as follows:

On January 7, 2009, the State charged Kochopolous in Lake

County with Operating a Vehicle After Lifetime

Suspension, a Class C felony, and Operating a Vehicle

While Displaying an Incorrect Registration Number, a

traffic infraction, under cause number 45G04-0901-FC-2.

On March 6, 2009, the State charged Kochopolous with

Operating a Vehicle After Lifetime Suspension, Operating

a Vehicle While Intoxicated, as a Class A misdemeanor,

and Operating a Vehicle While Intoxicated, as a Class C

misdemeanor under cause number 45G04-0903-FC-30. 

On September 4, 2009, Kochopolous pled guilty to the

charges in both causes without the benefit of a plea

agreement. When questioned by the trial court as to

Kochopolous’s decision to plead guilty, his attorney

stated he had spoken with Kochopolous at length about the

risks of going to trial versus pleading guilty and that

the result of the conversation was Kochopolous’s decision

to plead guilty. The trial court asked numerous

questions to verify that the pleas were being entered

freely and voluntarily and then reviewed the rights being

given up with Kochopolous, ending with: “Sir, you are

convicting yourself by pleading guilty. Do you understand

that?” Hearing transcript at 21. Kochopolous answered

affirmatively. The trial court then took the pleas under

advisement. 

On September 17 and 30, 2009, letters were received by

the Lake County Superior Court Clerk’s Office from

Kochopolous contending that he had been forced by his

defense attorney to plead guilty to the charges, that he

was innocent and that he wished to withdraw his guilty

pleas. At the sentencing hearing on October 1, 2009, the

trial court heard argument regarding Kochopolous’s pro se

request to withdraw his guilty pleas. The trial court

asked Kochopolous if he remembered the guilty plea

hearing and the long discussion of the implications of

pleading guilty. He answered that he did not remember

because he had a poor memory due to a prior motorcycle

accident that put him in a coma for forty-five days. 

When the trial court asked why he thought he could beat

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the charges against him, Kochopolous explained in detail

what he perceived to be the weaknesses of his case. The

trial court responded: “Well, how do you remember that if

you got a bad memory?” Tr. at 39. Kochopolous replied,

“Because I got—maybe I should just shut up.” Id. The

trial court denied the motion, accepted the guilty pleas,

entered judgment in both cases and imposed an aggregate

sentence of twelve years. 

Kochopolous v. State, Cause Number 45A05-0911-CR-634, slip op. 2-3

(Ind. Ct. App. June 7, 2010) (Attached as Ex. G.)

Kochopolous appealed, claiming the trial judge erred by

denying his motion to withdraw his guilty pleas. (Id. at 2.) On

June 7, 2010, the Indiana Court of Appeals affirmed the trial

court. (Id. at 4.) Kochopolous did not seek review in the Indiana

Supreme Court. (DE #13-3.) On October 21, 2010, Kochopolous filed

a petition for post-conviction relief, which was denied on November

7, 2012. (DE ##13-1, 13-2, 13-8, 13-9.) 

On October 16, 2014, Kochopolous tendered his petition to

prison officials for mailing. (DE #6 at 5.) In it, Kochopolous

seeks a new trial claiming that he was “railroaded by the Lake

County Superior Criminal Court” because they “tried him” when he

wanted a change of venue and that his attorney did not effectively

represent him because the evidence was insufficient to establish

that he was driving or operating the vehicle. (Id. at 2-4.)

DISCUSSION

 Kochopolous’s petition is governed by the provisions of the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

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See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under 28 U.S.C. §

2244(d), habeas 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;

(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;

© 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.

Upon review, none of Kochopolous’s claims 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. (See DE #6 at 6.) Therefore,

28 U.S.C. § 2244(d)(1)(A) applies. Under that provision,

Kochopolous had one year from the date his convictions became final

to pursue federal habeas relief. As stated above, Kochopolous’s

convictions were affirmed by the Indiana Court of Appeals on June

7, 2010, and he did not seek review in the Indiana Supreme Court. 

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Therefore, his convictions became final on July 7, 2010, when the

time for seeking review in the Indiana Supreme Court expired. See

IND. APP. R. 57(C)(1) (petition to transfer must be filed within 30

days of appellate court judgment); Gonzalez v. Thayer, 132 S. Ct.

641, 653-54 (U.S. 2012) (when a state prisoner does not seek direct

review in the state court of last resort, his conviction becomes

final when the time for seeking such review expires).

A properly filed application for state post-conviction relief

will toll the limitations period under 28 U.S.C. § 2244(d)(2). 

Kochopolous filed a post-conviction petition challenging both

convictions on September 21, 2010. (DE ##13-1, 13-2, 13-8, 13-9.) 

At that time, 76 days had expired of the statute of limitations

period. Kochopolous withdrew his post-conviction petition on

February 23, 2011, and the trial court “reactivated” it on

September 7, 2011. (DE ##13-8, 13-9.) During that period of time

Kochopolous did not have a petition filed or claims pending, 196

days expired of the statute of limitations period for a total of

272 days. The trial court then denied Kochopolous post-conviction

relief on November 7, 2012, but Kochopolous did not seek review by

any appellate court. (DE #13-8, 13-9.) The statute of limitations

period began to run again at that time. Kochopolous had an

additional 93 days, or until February 11, 2013, to file his federal

habeas petition. Kochopolous did not file a petition before that

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deadline, and instead he waited until October 2014 to seek federal

habeas relief.

When asked to explain why his petition is timely under the

provisions of 28 U.S.C. § 2244(d), Kochopolous failed to provide

any explanation. (DE #1 at 5.) He fails to acknowledge that he

did not seek federal habeas relief within one year of the date his

convictions became final. In fact, while the Respondent has

provided evidence and argument as to why Kochopolous’s petition is

untimely, Kochopolous has failed to file a traverse or otherwise

challenged the respondent’s position. He does not provide any

grounds for excusing the untimeliness of the petition. 

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 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 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).

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When the court has dismissed the petition on procedural

grounds, the determination of whether a certificate of

appealability should issue has two components. Id. at 484–85.

First, the petitioner must show that reasonable jurists would find

it debatable whether the district court was correct in its

procedural ruling. Id. at 484. Next, the petitioner must show

that reasonable jurists would find it debatable whether the

petition states a valid claim for denial of a constitutional right. 

Id. Each is a threshold inquiry; thus, the court need only address

one component if it will resolve the issue. Id. at 485. For the

reasons fully explained above, Kochopolous’s petition was not

timely filed. Nothing before the court suggests that jurists of

reason could debate the correctness of this procedural ruling or

find a reason to encourage Kochopolous to proceed further. 

Accordingly, the court declines to issue him a certificate of

appealability.

CONCLUSION

For the reasons set forth above, the petition (DE #6) is

DISMISSED WITH PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING

SECTION 2254 CASES, and the petitioner is DENIED a certificate of

appealability.

DATED: October 6, 2015 /s/ RUDY LOZANO, Judge

United States District Court

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