IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MICHAEL D. STEVENSON, )

)

Petitioner, )

)

vs. ) CAUSE NO. 1:13-CV-118

)

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 Michael D. Stevenson, a pro se prisoner, on

April 17, 2013. For the reasons set forth below, the court

DISMISSES this habeas corpus petition because it is untimely and

DENIES a certificate of appealability. 

BACKGROUND

Michael D. Stevenson is challenging his conviction on multiple

counts and 21 year sentence by the Allen Superior Court under cause

number 02D04-0509-FB-129 on September 6, 2006. Stevenson plead

guilty and did not file a direct appeal. On May 14, 2007, he

initiated a proceeding in the Allen Superior Court challenging this

conviction and sentence. That proceeding was dismissed on May 17,

2007, and he did not appeal. On August 20, 2007, he filed a post-
conviction relief petition which was denied on September 6, 2007.

He did not appeal the denial of that petition either. 

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

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

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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 Stevenson to

explain why the petition was timely. In response he wrote, “The

provisions of 28 USC §2244(d) does not apply to the Petitioner

because the USC only applies to United States citizens and the

Petitioner in not by law a United States citizen but a National.”

This is incorrect. “Section 2244(d) sets the timing rules for all

petitions." Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.

2005). Therefore it is irrelevant whether Stevenson is a United

States Citizen. All that matters is he is a prisoner attempting to

challenge a State court conviction with a habeas corpus petition

pursuant to 28 U.S.C. § 2254. Because he is, the 1-year period of

limitation set forth in 28 U.S.C. § 2244(d) is applicable to him,

his habeas corpus petition, and this case. 

The statute provides four possible dates from which the

limitation period begins to run. Nothing in this petition indicates

that state action prevented Stevenson from filing this habeas

corpus petition sooner. Therefore § 2244(d)(1)(B) is inapplicable.

So too, nothing indicates that the petition is based on a newly

recognized Constitutional right nor newly discovered evidence.

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Therefore §§ 2244(d)(1)(C) and (D) are also inapplicable.1

 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.

Here, Stevenson was sentenced on September 6, 2006. He did not

take a direct appeal and the deadline for doing so expired on

October 6, 2006. See Indiana Rules of Appellate Procedure 9.A.(1).

Thus the first day of the 1-year period of limitation began on

October 7, 2006. When Stevenson initiated a collateral attack in

State court on May 14, 2007, that tolled the 1-year period of

limitation, but by that time, 219 days had elapsed – leaving only

146 days. The 1 year clock began again when that proceeding ended

on May 17, 2007. It was tolled again when he filed a postconviction relief petition on August 20, 2007, but by that time, 94

more days had elapsed – a total of 313 days – leaving only 52 days

when the clock began again upon the dismissal of the postconviction relief petition on September 6, 2007. Nothing else

tolled the 1 year clock which expired on October 28, 2007. Because

that was a Sunday, he had until October 29, 2007, to file a habeas

corpus petition. See Federal Rule of Civil Procedure 6(a)(1)(C).

1

 For each ground raised (except for Ground 6 for which he provides no

explanation), Stevenson states that the reason that it was not presented to the

Indiana Supreme Court was because “The Petitioner was not knowledgeable of the

information at the time.” (DE 1 at 3-7) This is merely an assertion that

Stevenson did not have personal knowledge of the relevant facts or that he did

not understand the legal implications of them. However, 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). 

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However this petition was not signed until nearly five and a half

years later on April 11, 2013. Therefore it is untimely and must be

dismissed. 

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. 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: May 20, 2013 /s/RUDY LOZANO, Judge

United State District Court

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