United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AND DIRECTING ENTRY OF FINAL JUDGMENT
William T. Lawrence, Judge
2008, Antonio Cantu, Sr. pleaded guilty to class B felony
robbery in Lake County, Indiana, and was sentenced to six
years in prison. See State v. Cantu,
45G03-0712-FB-00104. Dkt. No. 19-1; Dkt. No. 19-2. He was
paroled on March 27, 2010. Dkt. No. 19-2, p. 4. On March 8,
2011, while still on parole from his Lake County robbery
conviction, the Indiana Department of Correction (IDOC)
Division of Parole Services recommended a parole violation
warrant be issued for Mr. Cantu based on three alleged rule
violations: one allegation that Mr. Cantu failed to report to
his parole agent as instructed and two allegations that he
failed to follow his parole agent's instructions. Dkt.
No. 19-2, pp. 5-6.
the IDOC Division of Parole Services noted an additional rule
violation in the form of an allegation that Mr. Cantu engaged
in criminal conduct (by robbing a bank in Michigan City,
Indiana on March 9, 2011). Dkt. No. No.19-2, pp. 8, 10.
Warrant for Retaking Offender issued on March 10, 2011, for
Indiana and the surrounding states. Dkt. No. 19-2, p. 7. The
Warrant, No. 11-0750, was later amended to extend nationwide.
Dkt. No. 19-2, p. 9.
Cantu was apprehended by law enforcement officers in Dallas,
Texas, in connection with the Michigan City, Indiana, bank
robbery and extradited from Texas to Indiana. Dkt. No. 19-2,
p. 10. He was charged with, and on September 28, 2011,
pleaded guilty to 18 U.S.C. § 2113(a), Bank Robbery by
Force or Violence. See United States v. Cantu, Case
No. 3:11-CR-00040(1)-RM. He was sentenced to 178 months of
imprisonment. Dkt. No. 19-2, pp. 11, 12-18. Based on this
conviction, Mr. Cantu is currently in federal custody in
Oklahoma City, Oklahoma, and has a tentative release date of
March 10, 2024. www.bop.gov/inmateloc/. The IDOC has
placed a detainer request for Mr. Cantu pursuant to Warrant,
No. 11-0750. Dkt. No. 19-3. It plans to obtain custody of Mr.
Cantu upon completion of his federal sentence and schedule a
parole revocation hearing within sixty (60) days of when Mr.
Cantu becomes available. Dkt. No. 19-2, p. 11.
Cantu's habeas petition challenges the fact that he is
facing a potential parole revocation when he completes his
federal sentence for bank robbery in 2024. More specifically,
the Indiana Parole Board has placed a detainer request with
the Bureau of Prisons and plans to obtain custody of him upon
the completion of his federal sentence to initiate parole
revocation proceedings relating to his 2008 sentence. The
respondent argues that Mr. Cantu's habeas petition must
be dismissed because he failed to exhaust his state court
remedies. Mr. Cantu did not file a reply.
Mr. Cantu seems to assert that the Indiana Parole Board has
already revoked his parole, this assertion is not correct.
Dkt. No. 19, p. 3. Mr. Cantu's parole has not yet been
revoked and a parole revocation hearing cannot be held until
he completes his term of federal incarceration. Dkt. No.
19-2. As such, this matter is not ripe for an
adjudication on his habeas petition because Mr. Cantu cannot
challenge the revocation of parole until his parole has
actually been revoked by the Indiana Parole Board.
doctrine is based on the Constitution's
case-or-controversy requirements as well as discretionary
prudential considerations.” Wisc. Right to Life
State Political Action Comm. v. Barland, 664 F.3d 139,
148 (7th Cir. 2011). “A claim is not ripe for
adjudication if it rests upon ‘contingent future events
that may not occur as anticipated, or indeed may not occur at
all.'” Texas v. United States, 523 U.S.
296, 300 (1998). Here, Mr. Cantu's habeas petition rests
upon the Indiana Parole Board revoking his parole. This will
not happen until 2024, if at all. As such, this matter is not
ripe and must be dismissed, but the dismissal will be without
prejudice to his right to file a new petition after
presenting his claims in one complete round of state
Certificate of Appealability
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 an adverse judgment is
entered against the petitioner. To obtain a certificate of
appealability, the petitioner must demonstrate “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). Here, the petition is being
dismissed on ripeness grounds. Even if Mr. Cantu could avoid
this ripeness barrier, there is nothing to suggest that
jurists of reason would debate the correctness of the
Court's procedural ruling or find a reason to encourage
him to proceed further before the Indiana Parole Board
revokes his parole. Accordingly, the court declines to issue
him a certificate of appealability.
these reasons, the petition is DISMISSED WITHOUT
PREJUDICE pursuant to Rule 4 of the Rules
Governing Section 2254 Cases. The petitioner is
DENIED a certificate of appealability.
clerk is directed to update the docket consistent
with the distribution portion of this Entry to show that Mr.