PCR Petition Must Include Defendant’s Verification to Stop the Habeas Clock

Recently, the Supreme Court of Indiana answered two questions certified by a federal district court in Kevin Isom’s years-long challenge of his death sentence. The Supreme Court’s answers to the two questions have important implications for attorneys practicing in post-conviction law.

Indiana criminal defendants looking to challenge their state convictions through collateral review have the opportunity to seek relief from both the state and federal courts. Below is a chart showing how the two court systems usually work.

With respect to federal habeas, in order to preserve his opportunity to seek relief in the federal court system through the habeas review process a defendant must file a timely request for such review. A request is timely when it is filed no more than one year after the “finality date” of the defendant’s conviction(s). We call this time period the “federal habeas clock.”

To know when the one-year federal habeas clock begins to run, we must first know the finality date of the conviction(s).

• If a direct appeal was not taken, the finality date is the date of sentencing plus 30 days.

• If a direct appeal was taken but transfer to the Supreme Court of Indiana was not sought, the finality date is the date the direct appeal decision was certified by the Court of Appeals of Indiana.

• If a direct appeal was taken and transfer to the Supreme Court of Indiana was sought, but a petition for writ of certiorari to the U.S. Supreme Court was not filed, the finality date is the date the proceedings in the Indiana Supreme Court ended (either transfer denial date or decision date) plus 90 days.

• If a direct appeal was taken, transfer to the Supreme Court of Indiana was sought, and a petition for writ of certiorari to the U.S. Supreme Court was filed, the finality date is the date the proceedings in the U.S. Supreme Court ended (either cert petition denial date or decision date).

Once we establish the finality date, the one-year federal habeas clock begins to run.

When a criminal defendant decides to pursue collateral review of his conviction(s) through the state post-conviction process, he can “toll” (stop) the one-year federal habeas clock. To do so in Indiana, he must submit a properly-filed petition for post-conviction relief. A properly-filed P.C.R. petition stops the federal habeas clock from running while the defendant completes the state post-conviction relief process.

Back to Kevin Isom’s case. Isom filed a petition for post-conviction relief in state court. Indiana Post-Conviction Rule 1(3)(b) requires the petition to be made under oath, and requires the petitioner to personally verify the correctness of the petition and the authenticity of any attached documents. When Isom filed his P.C.R. petition, he refused to sign and verify the petition.

The primary question the Supreme Court of Indiana was asked to answer in Isom’s case was whether an unverified P.C.R. petition filed by an attorney on behalf of a criminal defendant was “properly filed.” In other words, if a defendant fails to properly file a P.C.R. petition (i.e., sign and verify the petition), does it stop the federal habeas clock from running? The Supreme Court of Indiana held that it does not.

One would think this is an unusual situation that rarely arises in post-conviction practice. I wish that were true. I have personally experienced similar situations in my own practice.

Once the finality date passes and the federal habeas clock begins running, defendants are under pressure to find and hire attorneys to investigate and litigate their post-conviction claims. The process alone can take months. For this reason, appellate practitioners advise clients at the end of their direct appeals that if they are considering filing a P.C.R. petition they should file one as soon as possible and not delay. The petition can be amended later to include additional claims. D.O.C. facilities have informational packets prepared by the State Public Defender for help in preparing the petition and ensuring it is properly filed. Or appellate counsel can include a blank copy of a P.C.R. petition in counsel’s closing letter to the client.