IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

DAVID LEROY HALE, )

)

Petitioner, )

)

vs. ) CAUSE NO. 4:14-CV-47

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition under 28

U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in

State Custody filed by David Leroy Hale, a pro se prisoner, on June

9, 2014. For the reasons set forth below, the court DISMISSES this

habeas corpus petition because it is untimely and DENIES a

certificate of appealability. 

BACKGROUND

David Leroy Hale, is challenging his guilty plea and 40 year

sentence for Voluntary Manslaughter by the Tippecanoe Superior

Court under cause number 79D02-0603-MR-1 on September 12, 2006.

Hale filed a direct appeal which concluded when the Indiana Supreme

Court denied his petition to transfer on June 7, 2007. Hale v.

State, 869 N.E. 2d 460 (Ind. 2007). He did not file a petition for

certiorari to the United States Supreme Court and the deadline for
doing so expired on September 5, 2007. Then, 294 days later, he

filed a post-conviction relief petition on June 26, 2008. His postconviction relief proceeding ended when the Indiana Supreme Court

denied transfer on March 9, 2012. Hale v. State, 963 N.E. 2d 1122

(Ind. 2012). He did not file a petition for certiorari to the

United States Supreme Court. Then, 387 days later, he filed a

motion for modification on April 1, 2013, which was denied on May

20, 2013. He did not appeal the denial of that motion. This habeas

corpus petition was signed and mailed, 372 days later, on May 28,

2014. 

DISCUSSION

Pursuant to 2254 Habeas Corpus Rule 4, the Court must review

a habeas corpus petition and dismiss it if “it plainly appears from

the petition and any attached exhibits that the petitioner is not

entitled to relief . . ..” Because this petition is untimely, it

must be dismissed. 

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

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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). 

Question 16 on the habeas corpus form asked Hale to explain

why the petition was timely. In response he wrote:

Because by law you can’t have two petitions in

the courts at the same time. Petitioner had

modification for relief in April 1st 2013, and

denied May 20th 2013 and before that 2012 2011

P.C. and Amended P.C., transfer in. This is in

the one year period. The date’s are timely in

the limitation periods motion to correct

erroneous 2014 so from time of sentence

through out had some form of motion in court

system. 2006-2014. 

DE 1 at 5. Hale does not mention (and nothing in this petition

indicates) that state action prevented him from filing this habeas

corpus petition sooner or that the petition is based on a newly

recognized Constitutional right. Therefore §§ 2244(d)(1)(B) and (C)

are not applicable to this case. 

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Hale asserts that Ground Three is “new with time learning

things in my case and learning about law.” DE 1 at 4. In Ground

Three he argues that the timing of the signing of his guilty plea

was inappropriate. He asserts that “the length of time that passed

between guilty plea signing and sentencing and rushed signing” was

too long. DE 1 at 4. To qualify as a claim based on newly

discovered evidence, the claim must be presented within one year

from “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)(D). The Seventh Circuit has

made clear that the time runs from the date when the evidence could

have been discovered through diligent inquiry, not when it was

actually discovered or when its significance was realized. Owens v.

Boyd, 235 F.3d 356, 359 (7th Cir. 2001). Here, Hale clearly knew

how much time elapsed between the negotiation of the guilty plea,

when he signed it, and when he was sentenced. Though he may not

have understood the significance (if any) of whatever delay may

have occurred, he knew how much time had transpired by the time he

was sentenced. Therefore 2244(d)(1)(D) is not applicable to this

case.

Thus, pursuant to § 2244(d)(1)(A), the 1-year period of

limitation began when the judgment became final upon the expiration

of the time for seeking direct review when the deadline for filing

a petition for certiorari with the United States Supreme Court

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expired on September 5, 2007. See Sup. Ct. R. 13(1) and Gonzalez v.

Thaler, 565 U.S. __, __; 132 S. Ct. 641, 653-54; 181 L. Ed. 2d 619,

636 (2012). (“[T]he judgment becomes final . . .when the time for

pursuing direct review . . . expires.”). The next day, on September

6, 2007, the 1-year limitation period began. It ran until he filed

a post-conviction relief petition on June 26, 2008. Pursuant to 28

U.S.C. § 2244(d)(2), the filing of that petition tolled the

limitation period. However before he filed his post-conviction

relief petition, 294 days had elapsed – leaving him only 71 days

once his post-conviction relief proceedings ended. They ended on

March 9, 2012, when the Indiana Supreme Court denied transfer. So,

71 days later, on May 21, 2012, the 1-year period of limitation

expired. See Federal Rule of Civil Procedure 6(a)(1)(C) (excludes

the last day if it is Saturday, Sunday, or a legal holiday). Though

he would later file a motion for modification on April 1, 2013, by

then the deadline had passed and could no longer be tolled. Thus,

by the time that this habeas corpus petition was filed on May 28,

2014, it was more than two years late. 

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

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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. 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. 

CONCLUSION

For the reasons set forth above, the court DISMISSES this

habeas corpus petition because it is untimely and DENIES a

certificate of appealability.

DATED: June 11, 2014 /s/RUDY LOZANO, Judge

United State District Court

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