United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING PETITION FOR WRIT OF HABEAS
WALTON PRATT, JUDGE
matter is before the Court on Petitioner Darnell Wilson's
(“Wilson”) Petition for Writ of Habeas Corpus.
Wilson is serving a 16-year sentence for his 2015 Marion
County, Indiana conviction for Class B felony aggravated
battery and adjudication that he is a habitual offender. He
brings this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons that follow,
Wilson's petition is denied and the
action dismissed without prejudice. In
addition, the Court finds that a certificate of appealability
should not issue.
Factual and Procedural Background
March 5, 2015, after a one-day trial, a jury found Wilson
guilty of aggravated battery. Wilson waived his right to a
jury trial on the habitual offender count, and the trial
court heard evidence and took the matter under advisement. On
March 20, 2015, the trial court found Wilson to be a habitual
offender and sentenced him to an aggregate term of sixteen
years. See Wilson v. State, 46 N.E.3d 1282, 2016 WL
381274, *3 (Ind.Ct.App. 2016).
appealed, arguing that the deputy prosecutor committed
misconduct, entitling him to a new trial. On February 1,
2016, the Indiana Court of Appeals affirmed the conviction
and sentence. Id. at *4. Wilson did not seek
discretionary review from the Indiana Supreme Court.
October 19, 2016, Wilson filed a pro se petition for
post-conviction relief. The state trial court appointed the
Indiana State Public Defender to represent him, and the
public defender entered an appearance on November 7, 2016.
However, on November 8, 2017, the State Public Defender filed
a motion to withdraw appearance, having presented a no merit
review memo to Wilson. The attorney for the State Public
Defender's office represented to the trial court that
Wilson had been consulted regarding the grounds raised in his
pro se petition, and that the public defender had
conducted a proper investigation of the record. See
Dkt. 1 at 9-12, dkt. 5-8. The trial court granted the public
defender's motion on November 16, 2017.
trial court conducted a post-conviction evidentiary hearing
on January 16, 2018, but on that same date, Wilson moved to
withdraw his pro se petition for post-conviction
relief without prejudice. The trial court granted his motion.
to the post-conviction evidentiary hearing, Wilson filed this
petition for a writ of habeas corpus.
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.”
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004). To meet this requirement, a 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.” Id. at 1025-26. In
Indiana, that means presenting his arguments to the Indiana
Supreme Court. Hough v. Anderson, 272 F.3d 878, 892
(7th Cir. 2001). A federal claim is not fairly presented
unless the petitioner “put[s] forward operative facts
and controlling legal principles.” Simpson v.
Battaglia, 458 F.3d 585, 594 (7th Cir. 2006) (citation
and quotation marks omitted). 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).
alleges that his trial counsel failed to provide effective
assistance of counsel. However, the ineffective assistance of
counsel claim has never been presented to the Indiana Court
of Appeals or the Indiana Supreme Court. Before presenting
the claim to a federal court, Wilson must have presented the
claim to the Indiana Court of Appeals and the Indiana Supreme
Court. See Hough, 272 F.3d at 892.
petitioner has not fairly presented his claims to the state
courts, a petitioner may nevertheless circumvent his failure
to exhaust state remedies if either (1) no state corrective
process is available to address his claims, or (2)
circumstances exist that render such process ineffective to
protect his rights. 28 U.S.C. § 2254(b)(1)(B);
Castille v. Peoples, 489 U.S. 346, 349 n. 1 (1989);
Duckworth v. Serrano, 454 U.S. 1, 3 (1981);
Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir. 1995).
Wilson has not presented any such arguments.
because Wilson has failed to exhaust his state court
remedies, which is his burden to prove, Baldwin v.
Lewis, 442 F.2d 29 (7th Cir. 1971), his petition must be