UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JACOB LEE PRICE, )

)

Petitioner, )

)

v. ) CAUSE NO. 3:15-CV-167 WL

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Jacob Lee Price, a pro se prisoner, filed a habeas corpus petition attempting to challenge the

20 year habitual offender enhancement to his convictions by the Tippecanoe Superior Court under

cause number 79D01-9007-CF-86 on April 5, 1991. However, 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 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 included the entire text of 28 U.S.C. § 2244(d) and

asked Price to explain why the petition was timely. His response was, “The Petitioner is within the

one-year period pursuant to the above provision of 28 U.S.C. § 2244(d). The Indiana Court of

Appeals declined to authorize the filing of the [successive post-conviction relief] petition on

November 26, 2014.” DE 1 at 5. Neither that response, nor anything else in the 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 or newly discovered evidence. Therefore §§

2244(d)(1)(B), (C), and (D) do not determine when the 1-year period of limitation began to run. 

Pursuant to § 2244(d)(1)(A), the period would have begun when the judgment became final

upon the expiration of the time for seeking direct review. In this case, that was when the deadline

for filing a petition for certiorari with the United States Supreme Court expired on August 26, 1992.

See Sup. Ct. R. 13(1) and 30(1). However, because his conviction became final before the habeas

corpus statute of limitations became law on April 24, 1996, that date is when his 1-year period of

limitations began. See Graham v. Borgen, 483 F.3d 475, 478 (7th Cir. 2007). Pursuant to 28 U.S.C.

§ 2244(d)(2), the period is tolled while he had a pending post-conviction relief petition. Here, Price

filed a post-conviction relief petition on December 8, 1995, and that proceeding did not end until

June 28, 2013. DE 1 at 2. So his 1 year deadline began counting down the next day. It expired a year

later on June 30, 2014. See Federal Rule of Civil Procedure 6(a)(1)(C) (excludes the last day if it is

Saturday, Sunday, or a legal holiday). Because this habeas corpus petition was not signed until April

9, 2015, it is untimely and must be dismissed. 

Though Price sought authorization from the Court of Appeals of Indiana to file a successive

post-conviction relief petition on October 7, 2014, by then the habeas corpus deadline had already

expired. Nevertheless, because he request was denied, even if the deadline had not yet expired, that

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filing would not have tolled the 1-year period of limitation. See Powell v. Davis, 415 F.3d 722,

726-27 (7th Cir. 2005) (“Because an unauthorized successive petition is not considered ‘properly

filed’ under Indiana law, the one-year limit was not extended under § 2244(d)(2)” while the

petitioner’s request to pursue a successive petition was pending.). Moreover, the state court’s refusal

to authorize a successive post-conviction relief petition 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). 

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. 

For these reasons, the court DISMISSES this habeas corpus petition because it is untimely

and DENIES a certificate of appealability.

SO ORDERED.

ENTERED: November 19, 2015 s/William C. Lee 

William C. Lee, Judge

United States District Court

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