United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT.
reasons explained in this Entry, the petition of Michael
French for a writ of habeas corpus is be denied. In addition,
the Court finds that a certificate of appealability should
The Petition for Writ of Habeas Corpus
French is an Indiana inmate who seeks a writ of habeas
corpus. His claim is that the Indiana Department of
Correction did not properly calculate his credit time.
Specifically, Mr. French claims that he was deprived of all
of his educational credit time when his parole was revoked
and he was returned to prison. The respondent's arguments
in opposition to the petition for writ of habeas corpus
remain are that (1) the petitioner committed procedural
default by not appealling a decision of the Fayette Circuit
Court, (2) the petitioner's habeas claim is not
cognizable under 28 U.S.C. § 2254, and (3) the
petitioner's claim, even if cognizable, lacks merit.
examining a habeas corpus petition, the first duty of a
district court . . . is to examine the procedural status of
the cause of action." United States ex rel. Simmons
v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). That
examination should entail two inquiries: "whether the
petitioner exhausted all available state remedies and whether
the petitioner raised all his claims during the course of the
state proceedings." Henderson v. Thieret, 859
F.2d 492, 496 (7th Cir. 1988), cert. denied, 109
S.Ct. 1648 (1989). “It is the rule in this country that
assertions of error in criminal proceedings must first be
raised in state court in order to form the basis for relief
in habeas. Claims not so raised are considered
defaulted.” Breard v. Greene, 523 U.S. 371,
375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72
(1977)). “[I]t would be unseemly in our dual system of
government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation[.]” Coleman
v. Thompson, 501 U.S. 722, 731 (1991). Accordingly,
“federal courts will not review a habeas petition
unless the prisoner has fairly presented his claims
‘throughout at least one complete round of state-court
review, whether on direct appeal of his conviction or in
post-conviction proceedings.'” Johnson v.
Foster, 786 F.3d 501, 504 (7th Cir. 2015)(quoting
Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.
2014), and citing 28 U.S.C. § 2254(b)(1)). “[T]he
burden is on the petitioner to raise his federal claim in the
state court at a time when state procedural law permits its
consideration on the merits. . . .” Bell v.
Cone, 543 U.S. 447, 451 n.3 (2005). Thus, “[a]
federal claim that was not raised in the state courts is
procedurally barred and must be dismissed.”
Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir.
1990)(citing United States ex rel. Simmons v.
Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990)).
as pertinent here, procedural default “occurs when a
claim could have been but was not presented to the state
court and cannot, at the time that the federal court reviews
the habeas petition, be presented to the state court.”
Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir.
1992); see also Hogan v. McBride, 74 F.3d 144, 146
(7th Cir. 1996) (“Forfeiture under § 2254 is a
question of a state's internal law: failure to present a
claim at the time, and in the way, required by the state is
an independent state ground of decision, barring review in
federal court may excuse a procedural default if the habeas
petitioner establishes that (1) there was good cause for the
default and consequent prejudice, or (2) a fundamental
miscarriage of justice would result if the defaulted claim is
not heard.” Johnson v. Foster, 786 F.3d 501,
504 (7th Cir. 2015)(internal citations omitted). “Under
this cause-and-prejudice test, a cause is defined as,
‘an objective factor, external to the defense, that
impeded the defendant's efforts to raise the claim in an
earlier proceeding.' Prejudice means, ‘an error
which so infected the entire trial that the resulting
conviction violates due process.'” Smith v.
McKee, 598 F.3d 374, 382 (7th Cir. 2010) (internal
citation omitted). The second exception, known as the
fundamental miscarriage of justice exception, requires a
petitioner to show that he is actually innocent. Actual
innocence means factual innocence, not legal insufficiency.
Bousley v. United States, 523 U.S. 614, 623 (1998).
expanded record shows that Mr. French brought what has become
his habeas claim in the Fayette Circuit Court and that relief
in that action was denied on August 19, 2015. No appeal was
filed from this disposition. It is therefore evident, as
argued by the respondent, that Mr. French failed to present
any of his habeas claims to the Indiana Supreme Court. This
failure constitutes procedural default. See
O'Sullivan v. Boerckel, 526 U.S. 838, 848
(1999)(“a prisoner who fails to present his claims in a
petition for discretionary review to a state court of last
resort” has not properly exhausted the claims for
purposes of 28 U.S.C. § 2254(b)(1); the habeas
petitioner's failure to present her “claims to the
Illinois Supreme Court in a timely fashion has resulted in a
procedural default of those claims”); Hough v.
Anderson, 272 F.3d 878, 892-93 (7th Cir. 2001)
(petitioner's failure to present issue to Indiana Supreme
Court constituted procedural default). That failure deprived
the Indiana state courts of the opportunity to examine and
evaluate the claim he has asserted in his petition for writ
of habeas corpus. Mr. French's habeas claim, therefore,
is barred from consideration here because of his unexcused
procedural default and he has not attempted to show the
presence of circumstances which would permit him to overcome
the consequence of his procedural default.
corpus has its own peculiar set of hurdles a petitioner must
clear before his claim is properly presented to the district
court.” Keeney v. Tamayo-Reyes,504 U.S. 1, 14
(1992) (O'Connor, J., dissenting) (internal citations
omitted). In the present case, Mr. French has encountered the
hurdle produced by the doctrine of procedural default. He has
not shown the existence of circumstances permitting him to
overcome this hurdle and hence is not entitled to the relief