United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
LOZANO, Judge United States District Court
Pernell, a pro se prisoner, filed a habeas corpus
petition under 28 U.S.C. § 2254 challenging his 2015
convictions in Allen County. (DE 1.) The court is obligated
to review the petition and dismiss it if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. . . .” Rule 4 of
the Rules Governing Section 2254 Cases.
to the petition, following a jury trial Pernell was found
guilty of attempted murder, aggravated battery and use of a
firearm in Cause No. 02D04-1411-F1-0003. (Id. at 1.)
On July 17, 2015, he was sentenced to 60 years in prison.
(Id.) Upon review of official online docket, Pernell
is currently seeking transfer with the Indiana Supreme Court.
r=02A03-1508-CR-01087&eepz=asdf (Last visited September
27, 2016.) He has not pursued state post-conviction relief.
(Id. at 2.) On September 14, 2016, he tendered his
federal petition to prison officials for mailing.
(Id. at 36.) He acknowledges that he has not yet
presented his claims to the Indiana Supreme Court.
petition is governed by the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). See
Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows
a federal court to issue a writ of habeas corpus on behalf of
a person in custody pursuant to a state court judgment
“on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Before considering
the merits of a habeas petition, however, the court must
ensure that the petitioner has exhausted all available
remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004). As the Seventh Circuit has explained:
Inherent in the habeas petitioner's obligation to exhaust
his state court remedies before seeking relief in habeas
corpus, see 28 U.S.C. § 2254(b)(1)(A), is the
duty to fairly present his federal claims to the state
courts. . . . Fair presentment in turn requires the
petitioner to assert his federal claim through one complete
round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings. 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, 390 F.3d at 1025-26 (internal citations and
quotation marks omitted). Here, it is clear from the petition
that Pernell has not yet presented his claims in one complete
round of state review, including with the Indiana Supreme
Court. Until he does so, he cannot obtain federal habeas
relief. 28 U.S.C. § 2254(b)(1)(A). Accordingly, the
petition is subject to dismissal.
court should consider staying rather than dismissing a
petition containing unexhausted claims when the one-year
statute of limitations under AEDPA has run or is close to
running, such that “dismissal would effectively end any
chance at federal habeas review.” Dolis v.
Chambers, 454 F.3d 721, 725 (2006). There is no such
danger here. Pernell's conviction is not yet final, as it
is pending with the Indiana Supreme Court. Once his
conviction becomes final, he has one year from that date to
pursue federal habeas relief, and the deadline will be tolled
during the time he has a properly filed state post-conviction
petition pending. See 28 U.S.C. § 2244(d)(1),
(2). If he acts diligently, he should have no difficulty
returning to federal court after he exhausts his state court
remedies. Therefore, the petition will be dismissed, but the
dismissal will be without prejudice to his right to file a
new petition after he exhausts his state court remedies.
to Rule 11 of the Rules Governing Section 2254 Cases, the
court must either issue or deny a certificate of
appealability in all cases where I enter a final order
adverse to the petitioner. To obtain a certificate of
appealability, the petitioner must make a substantial showing
of the denial of a constitutional right by establishing
“that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quote marks and citation omitted). When the
court dismisses the petitioner's claim on procedural
grounds, the determination of whether a certificate of
appealability should issue has two components. Id.
at 484-85. First, the petitioner must show that reasonable
jurists would find it debatable whether the district court
was correct in its procedural ruling. Id. at 484.
Next, the petitioner must show that reasonable jurists would
find it debatable whether the petition states a valid claim
for the denial of a constitutional right. Id. Each
is a threshold inquiry; thus, only one component needs to be
addressed if it will resolve the issue. Id. at 485.
explained above, Pernell has not yet exhausted his state
court remedies, and so his petition must be dismissed. A
dismissal without prejudice for failure to exhaust state
court remedies is not an appealable order, unless the
petitioner would be time-barred or otherwise precluded from
returning to federal court after exhausting his state court
remedies. Dolis, 454 F.3d at 723; Moore v.
Mote, 368 F.3d 754 (7th Cir. 2004). That issue is not
presented here, and so the dismissal order would not be
appealable. Aside from this procedural barrier, nothing
before the court suggests that jurists of reason could debate
the correctness of this procedural ruling or find a reason to
encourage Pernell to proceed further without first exhausting
his state court remedies.
these reasons, the petition (DE 1) is DISMISSED WITHOUT
PREJUDICE pursuant to Rule 4 of the Rules Governing Section
2254 Cases, and the ...