7th Circuit affirms murder conviction but chastises Indiana

August 3, 2017

A man twice convicted of murder failed to convince the 7th Circuit Court of Appeals that he should be allowed to pursue habeas relief, despite delays that the court said Indiana “tries to trivialize.”

Kunta Gray was convicted of murdering Gregory Jones in a 2000 Indianapolis drug deal gone bad. Gray was sentenced to 85 years in prison in 2007 after a prior conviction was overturned. Writing for the panel, 7th Circuit Chief Judge Diane Wood called the second trial “a rocky affair.” Among other things, prosecutors used four of eight peremptory challenges to strike black jurors. Further, the case was “not especially strong,” relying on testimony from jailhouse witnesses who had credibility issues and possibly motives to invent a jailhouse confession by Gray.

Gray sought and was denied post-conviction relief in state court, and his subsequent habeas petition was filed 108 days late. The district court ruled he did not qualify for the extraordinary relief of equitable tolling, and the 7th Circuit affirmed in Kunta Gray v. Dushan Zatecky, Superintendent, Pendleton Correctional Facility, 15-2482.
Gray argued that the Pendleton reformatory had just two computers with spotty internet access in the law library shared by 250 inmates and the prison was on lockdown a significant portion of the time. He also argued that Indiana waited 113 days for the Indiana Court of Appeals to give him his case record. While the court determined nothing in the record excused Gray from the one-year period of limitations, the panel used his case to chastise the state.

“Indiana tries to trivialize the 113-day delay, but we do not make light of it. At oral argument the state suggested that so long as Gray received the documents before the one-year deadline, any delay in filing was entirely his responsibility. That cannot be right,” Wood wrote. This is a holistic inquiry, and the length of time remaining for the applicant to file is quite pertinent: several months will be one thing; two days quite another.

“Moreover, we reject the notion that a state’s procrastination can torpedo an indigent prisoner’s case. If this sort of delay becomes routine, prisoners may begin filing prophylactic habeas corpus petitions and immediately requesting a stay pending the state’s provision of the required records. Indiana professed indifference to this outcome at oral argument; it may wish to reconsider. ... We trust that this was just something said in the heat of argument.”


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