OPINION AND ORDER
Bruce D. Johnson-El, a pro se prisoner, filed a Petition for Writ of Habeas Corpus [ECF No. 1] attempting to challenge his conviction and 20-year sentence for rape in Cass Superior Court on March 23, 2006. The Respondent argues that the Habeas Corpus Petition must be dismissed because it is untimely, the claims are procedurally defaulted, and they are without merit. Johnson-El has not filed any reply.
BACKGROUND
In deciding the Petition, the Court must presume that the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Johnson-El's burden to rebut this presumption with clear and convincing evidence. Id. On direct appeal, the Indiana Court of Appeals set forth the facts underlying this case as follows:
On the night of April 16, 2003, Johnson-El visited the home of Pamela Putnam in Logansport. Johnson-El had known Putnam since childhood and regularly visited Putnam at her home. Putnam's children, eighteen-year-old A.P. and twenty-one-year-old Shaun, also lived at the residence. When Johnson-El arrived at Putnam's home, Putnam was in her bedroom and A.P. was watching television in the living room. Johnson-El sat next to A.P. on the couch and A.P. noticed that Johnson-El smelled of alcohol and that his speech was slurred. Shaun arrived home a short time later, and Johnson-El and Shaun decided to walk to Johnson-El's home to obtain alcohol, approximately three blocks away. After they left, A.P. went to her bedroom to sleep. Johnson-El and Shaun returned to Putnam's home with a few beers and a bottle of whiskey, consumed some of the alcohol, and fell asleep watching television.
During the night, A.P. awoke to discover Johnson-El sitting on the edge of her bed. A.P. asked Johnson-El why he was in her room and then told him to leave. Johnson-El left A.P.'s bedroom, closing the door behind him. A.P. fell asleep but was subsequently awakened by a man she recognized as Johnson-El lying behind her and applying pressure to her neck and hips. A.P. realized that the shorts she was wearing had been pulled down and that Johnson-El was touching her neck, lower back, and vagina while holding her wrists together in front of her. A.P. felt Johnson-El put his penis into her vagina and move slowly. A.P. began to struggle, freed her left arm, pushed Johnson-El, and told him "no" and "to stop." Tr. p. 25. Johnson-El began to move faster as A.P. struggled. Johnson-El eventually stopped, stood up, told A.P. not to tell anyone, and left her bedroom.
The next morning, Putnam found Johnson-El on the couch and he told her that he had done "something that he was ashamed of . . . ." Id. at 60. A.P. remained in her bedroom until Putnam and Johnson-El left the house. A.P. answered the phone when it rang and Johnson-El asked her "if [she] was okay" and reiterated that this was "between me and you." Id. at 28. A.P. hung up the phone, called Putnam at work, and asked that she come home.
When Putnam returned home, A.P. told her mother that Johnson-El had raped her. While Putnam was talking with A.P., Johnson-El called the house again. Putnam answered the phone and told Johnson-El that she knew what he had done and that she was going to call the police and take A.P. to the hospital. After she hung up the phone, Putnam called the police and brought A.P. to the emergency room in a Logansport hospital. At the hospital, a nurse performed a sexual assault examination on A.P. A.P. complained of a sore vaginal area and lower back pain. The nurse noticed an abrasion on A.P.'s neck.
On April 23, 2003, the State charged Johnson-El with class B felony rape. On June 4, 2004, the State filed an additional count of class B felony rape. A bench trial was held on March 23, 2006, and Johnson-El moved for a directed verdict after the State presented its evidence. The trial court granted Johnson-El's motion as to Count II but denied the motion as to Count I. After the remainder of the bench trial, the trial court found Johnson-El guilty of rape. Following sentencing hearings on April 17, 2006, and May 1, 2006, the trial court sentenced Johnson-El to twenty years imprisonment.
Johnson-El v. State, No. 09A02-0605-CR-424, slip op. at *2-4 (Ind. Ct. App. Jan. 10, 2007).
On direct appeal, Johnson-El challenged the sentence. [ECF No. 11-4.] The Indiana Court of Appeals affirmed his sentence on January 10, 2007, and Johnson-El did not seek transfer to the Indiana Supreme Court. [ECF Nos. 11-3, 11-7.]
Johnson-El filed a Petition for post-conviction relief and a Motion for a change of judge on January 28, 2009:
In his petition, Johnson-El argued that the assistance of his trial and appellate counsel had been ineffective and that the trial court had improperly enhanced his sentence. In his motion for a change of judge, he requested a new judge based on his belief that the judge who had presided over his trial was biased against him. Specifically, he claimed that the trial judge's actions at trial "consisted of voice inflections, facial expressions, and glances, and making reference to this case as a file # 13 case." Based on this "demeanor throughout trial," Johnson-El argued that his trial judge was partial to the State and could not make an objective assessment of the arguments he raised in his petition for post-conviction relief. In response to Johnson-El's petition and motion, on February 3, 2009, the State filed an answer in which it requested disposition without a hearing because Johnson-El's arguments did not contain genuine issues of material fact. That same day, the post-conviction court denied Johnson-El's change of judge motion without a hearing.
Subsequently, on February 17, 2011, Johnson-El, pro se, filed an amended petition for post-conviction relief and a second motion for change of judge. In his amended petition, Johnson-El alleged that he was entitled to a new trial based on newly discovered evidence that the victim of his rape had allegedly admitted to her cousin that Johnson-El had not raped her. In his second motion for a change of judge, Johnson-El again argued that his trial judge was prejudiced against him. He stated that:
I believe the [trial judge] has a personal bias or prejudice against me because my conviction rests upon the sole credibility and testimony of the alleged victim in this case; [a]nd over my own credibility and testimony, he favored a conviction, via, marrying the alleged victim's testimony; and thus, has evinced in this case a bias against me so strong as to affect his objectivity in assessing the charges and claims now made pending before the court in my instant [a]mended [p]etition for [p]ost-[c]onviction [r]elief that would warrant his disqualification from considering this matter. Further, it is my firm belief that the maxium [sic] sentence of [twenty (20)] years he has given me convinces me that he holds such a bias against me.
Also on February 17, 2011, the post-conviction court denied Johnson-El's second motion for a change of judge, finding that it did not comply with Indiana Post-Conviction Rule 1(4)(b).
On March 19, 2013, the post-conviction court held a hearing and dismissed Johnson-El's amended petition for post-conviction relief pursuant to Indiana Trial Rule 41(E). On April 8, 2013, Johnson-El filed a motion to correct error disputing both the post-conviction court's denial of his motion for a change of judge and his petition for post-conviction relief. The post-conviction court held a hearing on the motion to correct error on July 1, 2013, and denied the motion that same day.
Johnson-El v. State, No. 09A02-1302-PC-270, slip op. at *2-4 (Ind. Ct. App. Aug. 24, 2014) (internal citations and footnotes omitted).
On appeal from the denial of post-conviction relief, Johnson-El argued that the post-conviction court improperly denied his Motion for a change of judge and that the dismissal of his post-conviction Petition on procedural grounds under Trial Rule 41(E) was improper. The Indiana Court of Appeals affirmed the post-conviction court's rulings. [ECF No. 11-10.] Johnson-El reiterated his claims on transfer, but the Indiana Supreme Court denied transfer on October 23, 2014. On March 16, 2015, Johnson-El filed his Petition for Writ of Habeas Corpus here, which was signed on March 10, 2015.
ANALYSIS
This Petition must be dismissed for a number of reasons. The Respondent argues that Johnson-El's Petition should be dismissed because it is untimely, the claims are procedurally defaulted, and the claims are without merit. Each of these issues will be addressed in turn.
First, however, the Court must address one additional issue sua sponte. It has come to the Court's attention that after this case was filed and while it was pending, Johnson-El filed another Writ of Habeas Corpus in Johnson-El v. Superintendent, 1:16-CV-3417 (S.D. Ind. filed Dec. 19, 2016), raising the same issues he raises here. Shortly after that Petition was filed in the SouthernDistrict of Indiana, Judge Larry L. McKinney dismissed it on the merits. (Id., ECF Nos. 3, 4.) Notably, district courts lack jurisdiction to hear unauthorized "second or successive" habeas corpus petitions. Burton v. Stewart, 549 U.S. 147, 157 (2007). However, Congress did not define the phrase "second or successive." Magwood v. Patterson, 561 U.S. 320, 332 (2010). And, the phrase does not simply "refer to all § 2254 applications filed second or successively in time." Panetti v. Quarterman, 551 U.S. 930, 940 (2007). As such, the Court is presented with a unique situation where it is not quite clear which Petition is considered the "second or successive." It may very well be that the Southern District of Indiana did not have jurisdiction to rule on the merits of Johnson-El's Petition because it was filed after the Petition in this case. See 28 U.S.C. § 2244(b)(1) (noting that a "claim...
