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Davis v. Superintendent

United States District Court, N.D. Indiana, Fort Wayne Division

February 10, 2014

MICHAEL JAMES DAVIS, Petitioner,
v.
SUPERINTENDENT, Respondent.

OPINION AND ORDER

RESA L. SPRINGMANN, District Judge.

This is the third time that Michael James Davis, a pro se prisoner, has filed a habeas corpus petition attempting to challenge his 1986 conviction in absentia for Deviate Criminal Conduct in the Lake Superior Court under cause number 45G02-8512-CV-195. Davis is incarcerated in Colorado and has not yet been sentenced in the Lake County, Indiana case. His first two habeas corpus cases (3:11-cv-451 and 2:13-cv-66) were dismissed because he had not yet exhausted his claims in the state courts. This case must be dismissed for the same reason.

Before a petitioner can challenge a State proceeding, he must have previously presented his claims to the State courts. "This means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004). Based on this petition, it is clear that Davis has not yet done this. He says that he has a case pending on appeal in Indiana. Though it is unclear what stages of the process he has completed, it is clear that he is not yet done. Thus, this court may not grant him habeas corpus relief. 28 U.S.C. 2254(b)(1)(A).

For the foregoing reasons, this petition is DISMISSED WITHOUT PREJUDICE.

SO ORDERED.


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