United States District Court, N.D. Indiana, South Bend Division
TRACY A. HARDY, Petitioner,
OPINION AND ORDER
LOZANO, Judge United States District Court
matter is before the Court on: (1) the amended 28 U.S.C.
§ 2254 Habeas Corpus Petition by a Person in State
Custody; and (2) Motion for Appointment of Counsel to Pursue
Habeas Corpus Proceedings, both filed by Tracy A. Hardy, a
pro se prisoner, on December 20, 2016. For the
reasons set forth below, the Court:
DISMISSES WITHOUT PREJUDICE the amended petition pursuant to
Rule 4 of the Rules Governing Section 2254 Cases;
DENIES the petitioner a certificate of appealability; and
DENIES the request for appointment of counsel.
petition, Hardy is challenging his 2015 drug conviction in
Elkhart County. (DE 3.) According to the petition, Hardy was
found guilty of three counts of dealing cocaine in Cause No.
20C01-1310-FA-56. (Id. at 1.) On May 14, 2015, he
was sentenced to 41 years in prison. (Id.) He
unsuccessfully pursued a direct appeal, and is currently
pursuing state post-conviction relief. (Id. at 1,
2.) On November 30, 2016, he tendered his amended federal
petition to prison officials for mailing. (Id. at
5.) Giving the petition liberal construction, he alleges that
the search warrant and affidavit in support of the search
warrant used at his trial were fraudulent. (Id. at
3, 4.) It appears Hardy is pursuing these same claims in his
pending state post-conviction proceedings. (DE 5.)
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.
Hardy's 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
and recently filed “Notice of Information” that
Hardy is currently pursuing his claims in state
post-conviction relief proceedings. Thus, he 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
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. Hardy has one year from the date his conviction
became final 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 the court enters 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 has dismissed 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, Hardy 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 ...