IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JEREMY WAYNE SMITH, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:15-CV-174

)

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 received from

Jeremy Wayne Smith, a pro se prisoner, on April 16, 2015. For the

reasons set forth below, the court DISMISSES this habeas corpus

petition because it is untimely and DENIES a certificate of

appealability. 

DISCUSSION

Jeremy Wayne Smith, a pro se prisoner, is attempting to

challenge his convictions and the 85 year sentence imposed by the

DeKalb Circuit Court on June 28, 2000, under cause number 17C01-

0003-CF-5. Habeas Corpus petitions are subject to a strict one year
statute of limitations.1 Question 16 asked Smith to explain why

this petition is timely. In response, he wrote: “Because I had a

properly filed post-conviction relief and other collateral reviews

with respect to the pertinent judgments and claims and shall not be

counted toward any limitation under this subsection.” DE 1 at 6.

Neither this answer nor the claims raised in the petition indicate

that they are based on newly discovered evidence or a newly

recognized constitutional right. Neither is there any indication

that a state-created impediment prevented him from filing his

federal petition on time. Accordingly, pursuant to 28 U.S.C. §

2244(d)(1)(A), the 1-year period of limitation began on the date

when the judgment became final upon the expiration of the time for

seeking direct review of his conviction and sentence. 

1 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.

2
Here, Smith plead guilty and was sentenced on June 28, 2000.

DE 1 at 1. He filed a direct appeal and on June 28, 2002, the

Indiana Supreme Court remanded the case for re-sentencing. Id. It

is unclear when Smith was re-sentenced. Nevertheless, Smith is

correct that while his post-conviction relief proceeding was

pending in the State court, the 1-year period of limitation was

tolled. See 28 U.S.C. § 2244(d)(2). However, he did not appeal the

denial of that petition and the tolling ended on December 3, 2008.

DE 1 at 2. Therefore the 1-year period of limitation began again2

on December 4, 2008, and expired on December 3, 2009. Because this

habeas corpus petition was not signed until more than five years

later on April 8, 2015, it is untimely. 

Though Smith sought authorization from the Court of Appeals of

Indiana to file a successive post-conviction relief petition on May

17, 2012, by then the habeas corpus deadline had already expired.

Nevertheless, because he request was denied, even if the deadline

had not yet expired, that 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

2

 If it had not already expired. The Indiana Supreme Court issued its

opinion remanding for re-sentencing on June 28, 2002. Smith did not file his

post-conviction relief petition until more than three years later on July 19,

2005. It seems likely that the 1-year period of limitation expired before Smith

filed his post-conviction relief petition. However, even if no time expired

before it was filed, this habeas corpus petition is still untimely. 

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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). 

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, 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). As explained, the 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 this case to proceed further.

Accordingly, the court declines to issue a certificate of

appealability.

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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: January 11, 2016 /s/RUDY LOZANO, Judge

United State District Court

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