United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNTTS-STINSON CHIEF JUDGE
Hankins was convicted in an Indiana state court of attempted
burglary and other offenses. He was also found to be a
habitual offender. He now seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254(a).
considered the pleadings, the expanded record, and the
parties' arguments, and being duly advised, the Court
finds that Hankins' petition for writ of habeas corpus
should be denied and that a certificate of appealability
should not be issued. These conclusions rest on the following
facts and circumstances:
his direct appeal, Hankins challenged the sufficiency of the
evidence as to the attempted burglary conviction. The Indiana
Court of Appeals rejected this challenge. Hankins v.
State, 9 N.E.3d 259, *1 (Ind.Ct.App. 2014). His petition
to transfer was denied. The Indiana state courts then
rejected Hankins' motions to correct sentence and his
petition for post-conviction relief. Hankins appealed the
denial of his third motion to correct sentence. That denial
was affirmed on appeal. Hankins v. State, 45 N.E.3d
68 (Ind.Ct.App. 2016). Hankins likewise appealed the denial
of his petition for post-conviction relief. That appeal was
dismissed after Hankins failed to file a transcript of the
lower court record.
filing of the present action followed. Hankins contends that:
(1) the filing of the attempted burglary charge in the
circumstances of this case violated his right to due process;
and (2) the filing of the habitual offender allegation render
his sentence erroneous. The respondent has responded to the
allegations of the petition, Hankins has replied, and the
record has been appropriately expanded.
“[W]hen 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). “[F]ederal 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).
Hankins' habeas claims were not included in his direct
appeal or in his action for post-conviction relief.
Hankins' second habeas claim was presented in one of his
motions to correct erroneous sentence, but the Indiana Court
of Appeals held that it was not properly asserted in such a
motion because the claim would require consideration of the
pretrial proceedings and did not allege a facial error in
sentencing. Hankins' appeal from the denial of his
petition for post- conviction relief was dismissed on
procedural grounds because no transcript from the lower court
was filed. These circumstances show that Hankins committed
procedural default with respect to each of his habeas claims.
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.
2004)(procedural default occurs “when a habeas
petitioner has failed to fairly present to the state courts
the claim on which he seeks relief in federal court and the
opportunity to raise that claim in state court has
habeas petitioner may overcome procedural default by
demonstrating cause for the default and actual prejudice or
by showing that the Court's failure to consider the claim
would result in a fundamental miscarriage of justice. See
House v. Bell, 547 U.S. 518, 536 (2006); Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
Hankins opposes the respondent's argument of procedural
default, but does so only by asserting that his habeas claims
are meritorious. This is an insufficient basis on which to
overcome his procedural default. A contrary ruling would
ignore the rule.
“[H]abeas 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, Hankins has encountered the hurdle produced by the
doctrine of procedural default. Henderson v. Cohn,
919 F.2d 1270, 1272 (7th Cir. 1990)(“[a] federal claim
that was not raised in the state courts is procedurally
barred and must be dismissed.”)(citing United
States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132
(7th Cir. 1990)). He has not shown the existence of
circumstances permitting him to overcome this hurdle and
hence is not entitled to the relief he seeks. His petition
for a writ of habeas corpus is therefore denied without a
decision being made as to the merits of his claims.
Judgment consistent with this Entry shall now issue.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule
11(a) of the Rules Governing § 2254 proceedings, and 28
U.S.C. § 2253(c), the Court finds that Hankins has
failed to show that reasonable jurists would find it
“debatable whether [this court] was correct in its
procedural ruling.” Slack v. ...