United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Snider, a pro se prisoner, filed a Petition for Writ
of Habeas Corpus [ECF No. 1] challenging his conviction and
60-year sentence on May 11, 2004, in the St. Joseph County
Superior Court under cause number 71D02-0205-FA-0028 for
child molestation. The Respondent argues that the Petition
must be dismissed because the claims are procedurally
2002, Snider was charged with child molesting. Ultimately, he
was convicted by a jury in March 2004. On direct appeal,
Snider challenged the sufficiency of the evidence. The
Indiana Court of Appeals affirmed his conviction and
sentence, and Snider did not seek transfer to the Indiana
November 7, 2005, Snider filed a petition for post-conviction
relief, which he later amended. On June 23, 2011, Snider
filed a Federal Habeas Petition [ECF No. 5-6] in the United
States District Court for the Southern District of Indiana,
claiming inordinate delay in the state post-conviction
proceedings. On February 13, 2014, the state trial court held
an evidentiary hearing and issued findings of fact and
conclusions of law denying his post-conviction petition.
September 2, 2014, Snider's Federal Habeas Petition in
the Southern District of Indiana was dismissed without
prejudice because the post-conviction court ruled on his
state post-conviction petition.
appealed the denial of post-conviction relief, but the
Indiana Court of Appeals affirmed the post-conviction court.
Snider unsuccessfully petitioned the Indiana Court of Appeals
for a rehearing. Snider did not seek transfer to the Indiana
Supreme Court. On March 14, 2016, Snider filed this Petition,
claiming: (1) the evidence was insufficient to convict him;
(2) his appellate counsel was ineffective; and (3) there were
numerous errors in the post-conviction court's
Respondent argues that Snider's Petition should be
dismissed because the claims are procedurally defaulted.
“To avoid procedural default, a habeas petitioner must
fully and fairly present his federal claims to the state
courts.” Anderson v. Benik, 471 F.3d 811,
814-15 (7th Cir. 2006) (quotation marks and citation
Inherent in the habeas petitioner's obligation to exhaust
his state court remedies before seeking relief in habeas
corpus is the duty to fairly present his federal claims to
the state courts. Only if the state courts have had the first
opportunity to hear the claim sought to be vindicated in the
federal habeas proceeding does it make sense to speak of the
exhaustion of state remedies. 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 v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir.
2004) (quotation marks and citations omitted).
court records show that Snider did not file a petition to
transfer to the Indiana Supreme Court after his direct appeal
or after appeal from the denial of his post-conviction
proceedings. (See Appellate Case History Direct
Appeal, ECF No. 5-2; Appellate Case History PCR, ECF No.
5-8.) Because Snider never raised any of his issues to the
Indiana Supreme Court his claims are procedurally defaulted.
in his Petition or accompanying 50-page Memorandum [ECF No.
1-1] does Snider address or acknowledge his procedural
default. In his Traverse [ECF No. 18], Snider presents two
arguments to excuse his procedural default. First, Snider
argues that he is innocent. Procedural default can be excused
“if the petitioner can . . . demonstrate that the
district court's failure to consider the claim would
result in a fundamental miscarriage of justice.”
Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir.
2014). In order to demonstrate a fundamental miscarriage of
justice, the petitioner must prove that “a
constitutional violation has resulted in the conviction of
one who is actually innocent of the crime.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). “[T]enable
actual-innocence gateway pleas are rare: A petitioner does
not meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.” McQuiggin v. Perkins, 133
S.Ct. 1924, 1928 (2013) (quotation marks and citation
omitted). A petitioner who asserts actual innocence
“must demonstrate innocence; the burden is his, not the
state's . . . .” Buie v. McAdory, 341 F.3d
623, 626-27 (7th Cir. 2003). To do so, he must come forward
“with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence-that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324
Snider has not provided any new evidence. He merely argues
that the evidence presented at trial was insufficient to
prove that his victim was under the age of 14. This alone
precludes finding that he has demonstrated actual innocence.
Moreover, his insufficiency of the evidence argument is
meritless because there ...