Perry v. Warden

                  UNITED STATES DISTRICT COURT                           
                 NORTHERN DISTRICT OF INDIANA                            
                      SOUTH BEND DIVISION                                

JASON S. PERRY,                                                          

          Petitioner,                                                    

              v.                   CAUSE NO. 3:25-CV-74-CCB-SJF          

WARDEN,                                                                  

          Respondent.                                                    

                      OPINION AND ORDER                                  
    Jason S. Perry, a prisoner without a lawyer, filed motions seeking to alter or 
amend the order denying habeas relief pursuant to Fed. R. Civ. P. 59(e). ECF 59. “A 
court may grant a Rule 59(e) motion to alter or amend the judgment if the movant 
presents newly discovered evidence that was not available at the time of trial or if the 
movant points to evidence in the record that clearly establishes a manifest error of law 
or fact.” Matter of Prince, 85 F.3d 314 (7th Cir. 1996); Deutsch v. Burlington N. R.R. Co., 983 
F.2d 741 (7th Cir. 1993).                                                 
    In the amended habeas petition, Perry asserted that he was entitled to habeas 
relief because the Posey Superior Court misconstrued evidence submitted by him 
during State post-conviction proceedings. ECF 3-1. He also asserted various claims of 
trial counsel error. Id. On January 31, 2025, the court denied the habeas petition, finding 
that the post-conviction proceedings claim was not a valid basis for habeas relief and 
finding that the claims of trial counsel error were untimely. ECF 4.      
    In the pending motions, Perry focuses on his claim that the Posey Superior Court 
misconstrued evidence submitted by him during State post-conviction proceedings. He 

relies on Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996), for the proposition that 
“Unless state collateral review violates some independent constitutional right, such as 
the Equal Protection Clause, errors in state collateral review cannot form the basis for 
federal habeas corpus relief.” He argues that his claim presents a valid basis for habeas 
relief because, by misconstruing his evidence in post-conviction proceedings, the State 
courts violated his right to due process. He also argues that the State courts violated his 

right to equal protection of the law and the Confrontation Clause.        
    With respect to due process, Perry cites Andrew v. White, 145 S. Ct. 75, 83 (2025), 
which reaffirmed that “the ultimate question is whether a fairminded jurist could 
disagree that the evidence so infected the trial with unfairness as to render the resulting 
conviction or sentence a denial of due process.” Id. Notably, Montgomery itself pertained 

to an asserted right to due process in a State post-conviction proceeding, and the 
Seventh Circuit rejected it as a basis for habeas relief as follows:      
    [W]e cannot say that mere delay in receiving a ruling on a state [petition 
    for post-conviction relief] violates the Due Process Clause. Although we 
    have suggested that inexcusable delay in processing a direct criminal 
    appeal may violate due process, the same does not hold true for delay in 
    processing a collateral appeal. Due process does not include prompt  
    resolution of collateral appeals. Whereas a direct criminal appeal has now 
    become a fundamental part of the criminal justice system, state post-
    conviction relief is not a part of the criminal proceeding-indeed, it is a civil 
    proceeding that occurs only after the criminal proceeding has concluded. 
    Delay in processing that collateral claim does not make the continued 
    imprisonment of the defendant unlawful, and hence, does not warrant  
    federal habeas corpus relief.                                        
Montgomery, 90 F.3d at 1206 (7th Cir. 1996). The Andrews holding, by its own terms, 
applies to evidentiary errors at trial rather than on post-conviction review when fewer 

constitutional protections are afforded, and, similar to the Montgomery petitioner, Perry 
cites no authority for the proposition that this holding applies with equal force to post-
conviction proceedings. It is also unclear how an evidentiary error on post-conviction 
review could render Perry’s conviction or sentence unreliable or his continued custody 
unlawful. The exhibits submitted by Perry indicate that the State courts left Perry’s 
conviction and sentence unaltered on post-conviction review. ECF 1-1 at 193-205. While 

the post-conviction error may have prevented Perry from demonstrating that his 
conviction was unreliable and that his custody was unlawful through his other claims at 
the post-conviction stage, there is no indication that it “infected” Mayberry’s criminal 
proceedings or his sentence with unreliability or unlawfulness.           
    Perry fares no better under the Confrontation Clause or the Equal Protection 

Clause. He did not frame his claim of post-conviction error as an equal protection claim 
based on his indigent status in his federal habeas petition or in his State appellate briefs 
as he suggests. ECF 1-1 at 22-72; ECF 3-1; ECF 3-2. Nor can the court plausibly construe 
the claim as bearing any relation to Perry’s inability to confront his accusers. The claim 
specifically pertains to legal memorandum prepared by the State public defender’s 

office, which did not accuse Perry of any crimes and does not contain a single 
testimonial statement as defined by Davis v. Washington, 547 U.S. 813 (2006). ECF 1-1 at 
166-74. Further, the Confrontation Clause expressly applies to “criminal prosecutions” 
and cannot be violated by post-conviction proceedings, which, by their very nature, 
cannot commence until after a conviction has been entered and the prosecution has 
been completed.                                                           

    Moreover, upon further consideration of the claim of post-conviction error, the 
court finds that it is more appropriately characterized as a restatement of Perry’s claims 
of trial counsel error. As suggested above, it is not clear how the habeas claim of post-
conviction error could operate as a challenge to the lawfulness of Perry’s custody 
without a substantial connection to some other claim raised in State post-conviction 
proceedings. See 28 U.S.C. § 2254(a) (habeas relief is available to a petitioner “only on 

the ground that he is in custody in violation of the Constitution or laws or treaties of the 
United States.”). And, here and on post-conviction appeal, Perry argued that the 
misinterpretation of evidence affected the State courts’ determination on his ineffective 
assistance of counsel claims. ECF 1-1 at 45; ECF 3-2 at 3. Specifically, he argued that 
“these findings could be used to conclude that any of the errors asserted by petitioner 

did not prejudice him.” Id. Consequently, the claim of post-conviction error is identical 
to an argument that the State court’s adjudication of his claims of trial counsel error 
“resulted in a decision that was based on an unreasonable determination of the facts in 
light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2).  
    In the dismissal order, the court found that the claims of trial counsel error were 

untimely. ECF 4. It seems unlikely that the Anti-Terrorism and Effective Death Penalty 
Act (AEDPA) would allow habeas petitioners to evade its timeliness requirements by 
recasting untimely claims as novel claims of post-conviction error. See Duncan v. Walker, 
533 U.S. 167, 179 (2001) (“The 1–year limitation period of § 2244(d)(1) quite plainly 
serves the well-recognized interest in the finality of state court judgments. This 
provision reduces the potential for delay on the road to finality by restricting the time 

that a prospective federal habeas petitioner has in which to seek federal habeas 
review.”); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (“Foreclosing 
litigants from bringing their claim because they missed the [AEDPA] filing deadline by 
one day may seem harsh, but courts have to draw lines somewhere, statutes of 
limitation protect important social interests, and limitation periods work both ways.”). 
Perry argues that the statute of limitations does not apply to his claims, but the 

operative statutory provision does not exempt any class of habeas claims from its 
purview. See 28 U.S.C. § 2244(d). Perry cites 28 U.S.C. § 2254(b)(1)(B), but, even if this 
statutory provision applied to Perry’s claims, it would merely excuse him from the 
requirement that petitioners exhaust available State court remedies.      
    For these reasons, the court DENIES the motions to reconsider (ECF 6, ECF 7). 

    SO ORDERED on February 18, 2025.                                     

                                     /s/Cristal C. Brisco                
                                  CRISTAL C. BRISCO, JUDGE               
                                  UNITED STATES DISTRICT COURT