Isom v. Neal

Decision Date02 December 2021
Docket Number2:21-CV-231-HAB
Parties Kevin ISOM, Petitioner, v. Ron NEAL, Warden, Indiana State Prison, Respondent.
CourtU.S. District Court — Northern District of Indiana

Shawn Nolan, Federal Community Defenders Office, Philadelphia, PA, for Petitioner.

Andrew A. Kobe, Caroline G. Templeton, Kelly A. Loy, Indiana Attorney General's Office, Indianapolis, IN, for Respondent.



Petitioner Kevin Isom ("Isom") was sentenced to death for the 2007 killing of his wife and two stepchildren. After exhausting his direct appeals, Isom filed a procedurally deficient petition for post-conviction relief that was dismissed by an Indiana trial court. The dismissal was reviewed by the Indiana Supreme Court. Rather than affirm or reverse the trial court, the Indiana Supreme Court ordered the trial court to "file Isom's tendered petition as of the date of this order," nearly a year after the petition's initial submission. Isom's post-conviction relief petition fared no better than his direct appeals, so he now seeks habeas relief from this Court.

Now before the Court is Isom's Motion for Statutory and/or Equitable Tolling. (ECF No. 6). Isom asks the Court to exclude 319 days, the time from the date Isom's conviction and death sentence became final1 to the date the Indiana Supreme Court ordered his post-conviction relief petition filed, from the one-year habeas statute of limitations. Respondent objects. Isom's motion has been fully briefed (ECF Nos. 7, 11, 13) and is ready for ruling.

I. Factual and Procedural Background

On January 12, 2016, Isom timely petitioned for post-conviction relief ("Petition") with the Lake County, Indiana, Superior Court. The Petition was signed by Isom, but it did not include a notarized oath affirming that the Petition stated all known grounds for relief, as required by Indiana Post-Conviction Rule 1, Section 3(b)2 . The trial court noted the omission and directed Isom to submit the missing oath within three weeks. Isom failed to do so.

Six weeks later, the trial court held a hearing on a verified motion for extension of time to file the oath and a motion to reconsider the trial court's decision to reject the unverified Petition. At this hearing, Isom expressed his desire for new representation. He explained to the trial court:

Well, as it was explained to me by the attorneys that they made a mistake. They simply forgot to submit the affirmation for my PCR petition. A very basic and fundamental aspect of the petition. Now, if they make that sort of mistake, what sort of mistakes will they make when it becomes more complex? That's my concern.

(ECF No. 8-3 at 256). The trial court sought to assuage Isom's concerns about his counsels’ competency, explaining that "many counties in the state actually don't even have a hard line about the petition being signed by the petitioner or authorized." (Id. at 257). Even so, she cautioned Isom that "we have time limits here, and you may be in danger of yielding, waiving, giving up, your right to proceed with post-conviction relief." (Id. at 258). Isom responded that, while he understood the trial court's warning, he had "no desire to waive [his] post-conviction." (Id. ). At the end of the hearing, Isom was given fourteen more days to submit the oath.

Four days before the new deadline, Isom filed a motion again asking the trial court to accept the Petition without the oath. The motion was denied, and the case set for another status conference.

More than a month after the extended deadline had passed, the trial court held a status hearing. At the outset, the trial court advised Isom that, if he did not submit the required notarization, the court "would find that [Isom] had forfeited [his] right to pursue post-conviction relief." (ECF No. 8-3 at 107). Isom responded that he had "no desire to waive [his] PCR," but "respectfully decline[d]" to sign the oath. (Id. at 107, 108). The reason for Isom's refusal was his desire to be represented by new attorneys. After a brief questioning by counsel, the Court again advised Isom that "[i]f you do not [sign the oath] today, sir, then you are forfeiting your post-conviction relief rights." (Id. at 114). Isom responded that he could not continue to work with his current counsel.

What followed was a back and forth between the trial court and Isom about the quality of his representation and his prospects for obtaining new court-appointed counsel. After that discussion, the Court again told Isom, "today's the day you need to decide whether you want to sign that petition." (Id. at 118). Again, Isom declined. In response, the trial court found that "there is no petition before the Court." (Id. at 119).

At this point Isom's counsel interjected, telling Isom that the "counsel issue might not be decided," suggesting that he might receive new counsel in the future. (Id. ). Isom responded by stating that he "need[ed] some assurance that if [he] sign [sic] [he] will have new representation." (Id. at 120). A ten-minute break was then taken so that Isom could speak with the chief public defender about the prospect of new counsel. Unfortunately, the chief public defender could not be reached during the recess.

When proceedings reconvened, the trial court stated:

We first met last year. The petition was to have been filed in January; it is now May 2nd. Frankly, I don't know what the Supreme Court is going to think about the fact that this Court has continued it this long. I'm a little concerned. But today is the day. You may, in fact, get new counsel, or you may not, Mr. Isom. But again, that question falls to you. You've said now at least twice that you decline to sign, and you've told us that in other words as well this morning and afternoon.

(Id. at 121). The trial court found that there was no petition before it, cancelled the scheduled post-conviction relief hearing, and notified the Supreme Court so that Isom's execution could be scheduled.

Less than two weeks later, Isom sent a letter to the Court stating that he had secured the agreement of a new public defender, Steven Schutte, to represent him. Isom stated in the letter that he wanted "to get started as soon as possible!" (Id. at 127). Schutte also filed a verified notice confirming that Isom had agreed to allow Schutte to represent him in the post-conviction relief proceedings. All the same, Isom's original legal team remained counsel of record.

Isom appealed the trial court's refusal to accept his unverified petition directly to the Indiana Supreme Court. Isom asked the Indiana Supreme Court to either "accept the post-conviction petition that Isom tendered in January 2016, or order the post-conviction court to accept the petition as of any date outside the case management schedule." Isom v. State , 170 N.E.3d 623, 657 (Ind. 2021). After briefing and oral argument, the Indiana Supreme Court issued a two-paragraph Order on January 3, 2017. The Order stated: "Being duly advised, the Court orders the trial court to file Isom's tendered petition as of the date of this order." (Id. at 131). No reasoning was provided.

On remand, Isom was represented by Schutte and another newly appointed attorney. Among the issues they raised was the Indiana Supreme Court's decision to deem the Petition filed in January 2017. The trial court denied relief on all claims and the Indiana Supreme Court affirmed. Isom , supra. The Indiana Supreme Court addressed the filing date issue in its opinion. Rejecting Isom's argument, the Court held: (1) that "nothing in the post-conviction rules permits Isom to collaterally attack an issue of post-conviction procedure that our Court already settled on appeal"; (2) that Isom waived his challenge to the filing date by "specifically requesting the relief he now challenges"; (3) that his argument was barred by the law-of-the-case doctrine; (4) that Isom pointed "to no error in the Court's order and cite[d] no rule that the order violates"; and (5) that Isom waived the issue by failing to properly develop the argument. Isom , 170 N.E.3d at 657–68.

II. Legal Discussion

Isom's request for tolling arises from the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Relevant here, the AEDPA imposes a one-year statute of limitations that begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).

A. Isom's Request for Tolling is Properly Decided

Before reaching the merits of Isom's request, the Court must first address whether those merits can be reached. Isom has filed a timely habeas petition. Any tolling of the habeas statute of limitations would apply only to a future amendment, an amendment that Isom promises will be forthcoming. Yet because there is no amendment before the Court, Respondent asserts that the request for tolling "is not yet ripe," and that any decision "would only be an advisory opinion that may be applicable in the future if Isom decides to amend his petition." (ECF No. 11 at 5).

By asking the Court to toll the statute of limitations before an untimely amendment is filed, Isom is asking the Court to apply tolling prospectively. This differs from how tolling is generally applied in the habeas context. United States v. Yarrington , 838 F. Supp. 2d 832, 834 (C.D. Ill. 2012). This Court recognized as much four months ago. United States v. Salas , 1:19-CR-45-HAB, DKT No. 55 (N.D. Ind. July 19, 2021). There, this Court determined that the defendant could "assert equitable tolling when he files a belated § 2255 petition but cannot seek an extension now." Id. at *2 (citing Mejia v. United States , 862 F. Supp. 2d 263, 276 (E.D.N.Y. 2012) ).

Case law addressing this issue is far from uniform. The Court finds no Seventh Circuit authority addressing whether a habeas deadline can be prospectively tolled. Other circuits have decided the issue, though...

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