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Lloyd v. Vannatta

July 24, 2002

KENNETH J. LLOYD, PETITIONER-APPELLANT,
v.
JOHN R. VANNATTA,*FN1 RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 00 C 781 -- Allen Sharp, Judge.

Before Bauer, Ripple and Manion, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

SUBMITTED JUNE 26, 2002*fn2

In 1993, Kenneth Jerome Lloyd was convicted in Indiana state court of neglect of a dependent and sentenced to twenty years' imprisonment. After pursuing unsuccessful appeals and post-conviction proceedings in state court, Mr. Lloyd filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging inter alia that his conviction was unconstitutional because the prosecution engaged in misconduct during its closing argument. The district court dismissed Mr. Lloyd's petition as untimely, and he appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I. BACKGROUND

A. State Court Proceedings

Mr. Lloyd was convicted by a jury in July 1993 of the charge of neglect of a dependent after his girlfriend's son died while under his care. Mr. Lloyd appealed, but the Indiana Court of Appeals dismissed his appeal on procedural grounds. The Supreme Court of Indiana granted his Petition to Transfer and affirmed his conviction on the merits on August 7, 1996. See Lloyd v. State, 669 N.E.2d 980 (Ind. 1996). His conviction became final on November 5, 1996, the deadline by which he could have filed --but did not file a petition for a writ of certiorari in the Supreme Court of the United States. On January 5, 1998, Mr. Lloyd filed a petition for post-conviction relief in the St. Joseph (Indiana) Superior Court, which was denied. The Indiana Court of Appeals affirmed the denial of his post-conviction petition, see Lloyd v. State, 717 N.E.2d 895 (Ind. App. 1999), and, on March 22, 2000, the Supreme Court of Indiana denied Mr. Lloyd's petition to transfer. See Lloyd v. State, 735 N.E.2d 227 (Ind. 2000) (table).

B. District Court Proceedings

Mr. Lloyd filed his petition for a writ of habeas corpus in the Northern District of Indiana on October 30, 2000, asserting that he had received ineffective assistance of trial and appellate counsel, that the evidence presented at trial was insufficient to support his conviction and that his conviction was unconstitutional because the prosecution engaged in misconduct during its closing argument by asserting that Mr. Lloyd, who had not been charged with murder, had beaten his girlfriend's son to death. Respondent John VanNatta moved the court to dismiss the petition as untimely under 28 U.S.C. § 2244(d)(1) because it was filed more than one year after Mr. Lloyd's conviction became final. Mr. Lloyd filed a traverse to VanNatta's motion, admitting that his petition was filed late but asserting that the delay in filing was caused by an external impediment -- the State of Indiana's failure to provide him with a complete transcript of his trial -- and consequently his untimeliness should be excused. The district court rejected Mr. Lloyd's argument and dismissed his petition. The court subsequently granted Mr. Lloyd a certificate of appealability ("CA") on the issue of whether his inability to obtain a complete copy of his trial transcript tolled the one-year statute of limitations under § 2244(d)(1).*fn3

II. DISCUSSION

A. Standard of Review

Mr. Lloyd argues that the district court erred by dismissing his § 2254 petition as untimely, asserting that the time for filing his petition should have been tolled because the state failed to provide him with a complete trial transcript. We review the district court's legal conclusion that his petition was untimely de novo. See Anderson v. Litscher, 281 F.3d 672, 673 (7th Cir. 2002).

B. Timeliness of Petition

Under § 2244(d)(1)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner must file a petition for a writ of habeas corpus within one year from the date on which his conviction became final, excluding the time that any "properly filed" petition for state post-conviction or other collateral relief is pending. See § 2244(d)(2); Gutierrez v. Schomig, 233 F.3d 490, 491 (7th Cir. 2000), cert. denied, 532 U.S. 950 (2001). Mr. Lloyd's petition is clearly untimely under this statute: his conviction became final on November 5, 1996, and he did not file his habeas corpus petition in the district court until October 30, 2001, some 1,454 days later. Even when the period that his state post-conviction proceedings were pending (January ...


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