IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION

TERRY SOUTHWOOD, 

Petitioner, 

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 vs. CAUSE NO. 3:16-CV-556 

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 Terry 

Southwood, a pro se prisoner, on August 22, 2016. For the reasons 

set forth below, the Court: (1) DISMISSES the petition pursuant to 

Habeas Corpus Rule 4 because it is untimely; (2) DENIES a 

certificate of appealability; (3) DENIES leave to proceed on appeal 

in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3) because an 

appeal in this case could not be taken in good faith; and (4) 

DIRECTS the clerk to close this case. 

DISCUSSION 

 Southwood is attempting to challenge his five child 

molestation convictions and 60 year sentence imposed by the Elkhart 

Superior Court on March 25, 2010, under cause number 20D03-0811-

FA-57. Habeas Corpus petitions are subject to a strict one year 
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statute of limitations.1 Question 16 asked Southwood to explain 

why this petition is timely. In response, he wrote: 

This petition is in accordance with the rules 

and procedures as set forth above. Due to the trickery 

and the general improprieties that occurred in the state 

proceedings which created fundamental unfairness and 

violated Petitioner’s Constitutional rights to Due 

Process, Petitioner has been denied of the right to a 

fair trial. The violations contained within, rise to the 

level of fundamental defects, which inherently, resulted 

in a complete miscarriage of justice and are 

inconsistent with the rudimentary demands of fair 

procedure. 

DE 1 at 4. Neither that response – nor anything else in the petition 

– indicates that this claim is based on a newly recognized 

Constitutional right. Therefore 28 U.S.C. § 2244(d)(1)(C) is not 

applicable to this case. That means that the 1-year period of 

 

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. 
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limitation began as specificed in either 28 U.S.C. § 2244(d)(1)(A), 

(B), or (D). 

 It is possible that when Southwood referred to “trickery and 

the general improprieties that occurred in the state proceedings,” 

he was trying to argue that he was impeded from filing a timely 

habeas corpus petition. “Although neither § 2244 nor this circuit 

has defined what constitutes an impediment for purposes of § 

2244(d)(1)(B), the plain language of the statute makes clear that 

whatever constitutes an impediment must prevent a prisoner from 

filing his petition.” Lloyd v. Van Natta, 296 F.3d 630, 633 (7th 

Cir. 2002) (quotation marks omitted). In Lloyd, the Seventh Circuit 

explained that the inability to obtain trial transcripts from the 

State court did not prevent him from filing a habeas corpus 

petition. Id. (“Because Mr. Lloyd was able to file his petition 

without a complete copy of his trial transcript, the state’s 

failure to provide a complete transcript did not prevent Mr. Lloyd 

from pursuing any of his claims, and § 2244(d)(1)(B) does not apply 

to this case.”). So too here. Trickery during his State court 

proceedings did not physically prevent Southwood from preparing a 

timely habeas petition and mailing it to this Court. Therefore 28 

U.S.C. § 2244(d)(1)(B) is not applicable to this case. 

 It is possible that when Southwood referred to “trickery and 

the general improprieties that occurred in the state proceedings,” 

he was trying to argue that the factual predicate of his claims 
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was concealed from him. 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). 

 The only ground raised by Southwood is that his counsel was 

ineffective. 

[H]e, (1) failed to examine Petitioner for competency 

(2) failed to adequately explain the process [i.e. 

difference between taking a plea and going to trial] (3) 

failed to inform petitioner that the Plea Agreement was 

a contract and would be used to stop all future appeals 

in order to enter him into a contract by adhesion which 

would subject him to a life of imprisonment and (4) 

failed to object to the court erroneously assuming 

subject matter jurisdiction. 

DE 1 at 3. Though Southwood may not have understood their legal 

significance, all of the facts necessary for this claim were known 

by him when he pleaded guilty. As the Seventh Circuit explained in 

Owens: 

If § 2244(d)(1) used a subjective rather than an 

objective standard, then there would be no effective 

time limit, as Owens’s case illustrates. Like most 

members of street gangs, Owens is young, has a limited 

education, and knows little about the law. If these 

considerations delay the period of limitations until the 

prisoner has spent a few years in the institution’s law 
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library, however, then § 2244(d)(1) might as well not 

exist; few prisoners are lawyers. 

Owens at 359. Thus, 28 U.S.C. § 2244(d)(1)(D) is not applicable to 

this case. 

 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. Southwood pleaded guilty 

and did not take a direct appeal. The deadline for doing so expired 

on April 26, 2010, and his conviction became final that day. See 

Indiana Rules of Appellate Procedure 9.A.(1) and 25.A. One year 

later, the deadline for filing a habeas corpus petition expired on 

April 26, 2011. Because this habeas corpus petition was not signed 

until August 9, 2016, it is more than 5 years late. 

 Southwood filed a post-conviction relief petition on 

September 20, 2011. Had he filed it on or before April 26, 2011, 

it would have tolled the 1-year period of limitation. See 28 U.S.C. 

§ 2244(d)(2). However, once the deadline expired, filing the postconviction 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). Because this 

habeas corpus petition is untimely, it must be dismissed. Though 

this might seem harsh, even petitions that are one day late are 

time barred. See United States v. Marcello, 212 F.3d 1005, 1010 
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(7th Cir. 2000) (citation omitted) and Simms v. Acevedo, 595 F.3d 

774 (7th Cir. 2010). 

 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, 

the Court must consider whether to grant a certificate of 

appealability. When a 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 the 

same reasons, he may not appeal in forma pauperis because an appeal 

could not be taken in good faith. 

CONCLUSION 

 For the reasons set forth above, the Court: (1) DISMISSES the 

petition pursuant to Habeas Corpus Rule 4 because it is untimely; 

(2) DENIES a certificate of appealability; (3) DENIES leave to 
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proceed on appeal in forma pauperis pursuant to 28 U.S.C. § 

1915(a)(3) because an appeal in this case could not be taken in 

good faith; and (4) DIRECTS the clerk to close this case. 

DATED: January 30, 2017 /s/RUDY LOZANO, Judge 

 United States District Court