Tredway v. Farley

Decision Date01 September 1994
Docket NumberNo. 93-1194,93-1194
Citation35 F.3d 288
PartiesVincent TREDWAY, Petitioner-Appellant, v. Robert A. FARLEY and State of Indiana, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Vincent Tredway, pro se.

Wayne E. Uhl, Deputy Atty. Gen., Gary D. Secrest, Office of Atty. Gen., Indianapolis, IN, for respondents-appellees.

Before CUMMINGS, BAUER, and FLAUM, Circuit Judges.

PER CURIAM.

Vincent Tredway, proceeding pro se, appeals from a final judgment of the district court dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. We affirm.

I.

On September 4, 1980, Tredway pleaded guilty in an Indiana state court to theft, a Class D felony under Indiana law. See Ind.Code Sec. 35-43-4-2. Tredway was sentenced to two years' imprisonment. Tredway did not appeal his conviction or sentence. On May 5, 1982, Tredway, pursuant to Indiana law, filed a petition for post-conviction relief in the Indiana trial court. In his petition Tredway asserted that his guilty plea was involuntary and unsupported by an adequate factual basis. The petition was denied by the Indiana trial court on the same day it was filed.

On May 13, 1982, Tredway's attorney in the post-conviction proceeding wrote a letter to Tredway informing him of the trial court's decision and his right to appeal. The letter also stated in part as follows:

I note that you are serving a two year term and that your sentencing date was October 2, 1980. You will, therefore, be released from custody before you will receive a decision on the appeal. Under these circumstances, it really may not be worthwhile doing it. Even if you win, it will do nothing to reduce your sentence. Consequently, I cannot, in good faith, recommend you doing one.

Under governing Indiana law at the time of these proceedings, the first step in perfecting an appeal was the filing of a motion to correct error. Ind.Ann.Code tit. 35, Crim.P.Rule 16 (West 1981). Tredway initially requested his attorney to file a motion to correct error. After meeting with his attorney in prison, however, Tredway withdrew the motion to correct error on the advice of counsel.

In 1984 the State of Indiana charged Tredway with rape and sought to enhance his sentence for being an habitual offender under Indiana law, based in part on his 1980 theft conviction. The rape charge and habitual offender allegation were dismissed pursuant to a plea agreement under which Tredway pleaded guilty to a misdemeanor.

On June 25, 1987, Tredway was convicted by an Indiana jury of a subsequent rape charge and found to be an habitual offender under the Indiana recidivist offender statute. See Ind.Code Sec. 35-50-2-8. Tredway's status as an habitual offender was based on both his 1980 theft conviction as well as a 1979 Indiana state theft conviction. Tredway received a sentence of forty years' imprisonment on the rape conviction enhanced by thirty years as a result of his habitual offender status, producing a total sentence of seventy years' imprisonment. The Supreme Court of Indiana affirmed Tredway's conviction and sentence on direct appeal. Tredway v. State, 542 N.E.2d 1345, 1347 (Ind.1989).

On March 2, 1988, the attorney representing Tredway in the appeal of his rape conviction informed Tredway that he could appeal his prior theft convictions in belated post-conviction proceedings. On May 15, 1989, Tredway filed a petition for permission to file a belated praecipe under Indiana Post-Conviction Remedy Rule 2 attacking the denial of his post-conviction relief which challenged his 1980 theft conviction. Indiana Post-Conviction Remedy Rule 2, Sec. 1 provides that an Indiana trial court shall grant such a petition when "(a) the failure to file a timely praecipe was not due to the fault of the defendant; and (b) the defendant has been diligent in requesting permission to file a belated praecipe under this rule." Tredway bore the burden of proving his grounds for relief by a preponderance of the evidence. Long v. State, 570 N.E.2d 1316, 1318 n. 3 (Ind.Ct.App.1991). The Indiana trial court denied the petition after holding a hearing.

The Court of Appeals of Indiana affirmed. Tredway v. State, 579 N.E.2d 88, 91 (Ind.Ct.App.1991). The court determined that the trial court properly found that Tredway was at fault under Post-Conviction Remedy Rule 2 Sec. 1(a) for failing to file a timely praecipe because "appealing the denial of his post-conviction relief simply was not important to him until he was adjudicated an habitual offender." Id. at 90. The court also held that the trial court did not abuse its discretion in finding that Tredway was not diligent in requesting permission to file a timely praecipe under Rule 2 Sec. 1(b) because Tredway waited almost two years after being adjudicated an habitual offender to initiate an appeal of the denial of his post-conviction relief. Id. at 91. The Supreme Court of Indiana denied Tredway's petition for transfer without opinion.

Tredway then filed this petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in the district court. The petition raised the same challenges to the 1980 guilty plea that Tredway had raised in his petition for post-conviction relief filed in the Indiana trial court in 1982. The petition also asserted that Tredway had been denied his constitutional rights to appeal and collaterally attack his 1980 theft conviction. The district court denied the petition without prejudice on the ground that the decision of the Court of Appeals of Indiana affirming the denial of Tredway's petition for permission to file a belated praecipe was based on independent and adequate state grounds under Crank v. Duckworth, 969 F.2d 363 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993), and Tredway had failed to establish cause for this procedural default or actual prejudice resulting from the alleged violations of federal law, or that the failure to consider the claims would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991). Tredway now appeals.

II.

As a preliminary matter, we must determine whether we have jurisdiction to consider Tredway's petition for a writ of habeas corpus. 28 U.S.C. Sec. 2254(a) grants federal courts jurisdiction to entertain a petition for relief from a person who, at the time the petition is filed, is "in custody" for the conviction the petitioner is challenging. "Because a person currently serving a sentence that was enhanced on the basis of a prior conviction is still in custody, he may challenge the enhancing conviction as constitutionally invalid even though that prior conviction's custodial term has expired." Smith v. Farley, 25 F.3d 1363, 1365-66 (7th Cir.1994); accord Maleng v. Cook, 490 U.S. 488, 492-94, 109 S.Ct. 1923, 1926-27, 104 L.Ed.2d 540 (1989); Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991) ("Crank I "). We therefore have jurisdiction to consider this petition.

The district court relied exclusively on our decision in Crank v. Duckworth, 969 F.2d 363 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993) ("Crank II "), in denying Tredway's petition. In Crank II, the petitioner was convicted of second-degree burglary by an Indiana jury in 1974. Crank II, 969 F.2d at 363. After the petitioner stated in open court that he wished to appeal, the trial court instructed the petitioner's attorney to perfect an appeal. Id. The attorney, however, never filed a motion to correct error and thus failed to perfect the appeal. Id. at 364. The petitioner was subsequently convicted of two counts of battery in 1981. Id. His sentence for this crime was increased by thirty years under the Indiana recidivist statute, based on his 1974 conviction. Id. In 1986, five years after receiving his sentence under the Indiana recidivist statute, the petitioner filed a petition for permission to file a belated praecipe under Indiana Post-Conviction Remedy Rule 2. Id. The Indiana trial court denied the petition on the ground that the petitioner "had not been diligent in seeking to file such a motion, having waited twelve years to do so." Id. The Court of Appeals of Indiana affirmed, and the Supreme Court of Indiana denied a petition for transfer. Id. The petitioner then filed a petition for a writ of habeas corpus, which the district court granted. Id.

A panel of this circuit reversed the district court's grant of the writ. Id. at 366. We reasoned that the Indiana state courts' refusal to address the petitioner's federal claims was based on an independent and adequate state procedural rule, and that the petitioner had failed to establish cause for this procedural default because the petitioner had not been diligent in pursuing his right to appeal. Id. Although we stated that the petitioner's twelve-year delay between his 1974 conviction and the filing of his belated post-conviction petition "caused his default," both the majority opinion and the concurrence emphasized that this twelve-year period included five years after the 1974 conviction was used to enhance the petitioner's 1981 sentence. Id. at 366 n. 3 and 368 (Flaum, J., concurring). Footnote three of the majority opinion stated that if this five-year period had been the only delay, "it is still likely that the state court would have denied his motion as untimely." Id. at 366 n. 3. The majority opinion concluded as follows:

Petitioner knew in 1981 that the 1974 conviction had been used to increase the length of his confinement. If he was truly interested in challenging that conviction he had an obligation under Rule 2 to act diligently. By not doing so he ran afoul of a state procedural rule, and as a result the federal courts will not entertain his claims.

Id. at 366 (footnote omitted).

After Crank II, then, it...

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