Thursday, August 01, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In ANTHONY WEDDINGTON v. DUSHAN ZATECKY, Superintendent (SD Ind., Pratt), an 18-page opinion, Judge Tinder writes:
Anthony Weddington was convicted in Indiana state court in two separate trials of a total of four counts of rape, two counts of criminal confinement, one count of criminal deviate conduct, and one count of robbery. He was sentenced to a total of 133 years’ imprisonment. He petitioned for a writ of habeas corpus, claiming that he was denied effective assistance of trial and appellate counsel in his second trial. The district court concluded that the petition was barred by the statute of limitations, that Weddington procedurally defaulted his claims, and that he was not entitled to relief; therefore, the court denied his petition. For the reasons that follow, we vacate the dismissal of the petition and remand to the district court for further proceedings. * * *
[ILB: The issue that occupies the first 11 pages is whether Judge Pratt should have recused herself, since she heard the case twice, first in Marion County court, and then later in federal district court.]
[p. 11] As explained below, this case has to be remanded for further proceedings. Thus, unlike our cases in which it was too late to remedy an appearance of bias because the district judge was done with the case * * * the appearance of bias can be remedied here before further proceedings are conducted in the district court. A simple application of our Circuit Rule 36 will assure that this case will be assigned to a different district judge on remand. * * *
[1.] Limitations Period] The record presents factual issues that must be resolved before a decision can be made regarding equitable tolling, and it appears that an evidentiary hearing is necessary to resolve the fact issues. The district court erred in failing to consider whether the limitations period was equitably tolled by the state’s alleged confiscation of Weddington’s legal papers.
[2. Exhaustion] As with equitable tolling, further findings are necessary to determine whether Weddington can overcome his procedural default. Therefore, we must remand for further findings, including an evidentiary hearing, if necessary.
III. Conclusion. We accordingly VACATE the denial of Weddington’s habeas petition and remand for further proceedings consistent with this opinion. Circuit Rule 36 shall apply on remand.
Posted by Marcia Oddi on August 1, 2013 04:22 PM
Posted to Ind. (7th Cir.) Decisions