United States District Court, S.D. Indiana, Terre Haute Division
DAVID W. GREEN, JR., Petitioner,
WABASH VALLEY CORRECTIONAL FACILITY, Respondent.
ENTRY DISMISSING PETITION FOR A WRIT OF HABEAS
William T. Lawrence, Judge.
David Green brings this petition for a writ of habeas corpus
challenging the modification of his state sentence. For the
following reasons, Green's petition must be dismissed.
February 8, 2016, Green pleaded guilty in Clark County to
Class B felony burglary and three counts of Class D felony
receiving stolen property. As part of the plea agreement,
Green agreed to a 16-year sentence in exchange for the
dismissal of three counts of Class B felony burglary. On
February 20, 2017, Green filed a motion for sentence
modification in the trial court. The State objected to
Green's motion for sentence modification. On April 24,
2017, the trial court modified Green's sentence by
suspending an additional two and one-half years with an added
condition of restitution. On July 18, 2017, Green filed a
pro se motion to correct error in the trial court,
arguing that he was promised twice as much credit time
(2½ years) at the hearing on his motion for sentence
modification than was reflected in the amended abstract of
judgment after modification (1½ years). Before the
trial court ruled on his motion to correct error, Green filed
a motion to correct erroneous sentence asserting the same
basis, and a memorandum in support of that motion. On October
25, 2017, Green filed the instant petition for writ of habeas
respondent argues that Green's habeas petition should be
dismissed because he has not yet exhausted his state court
remedies with regard to his claims. “[A] state prisoner
must normally exhaust available state remedies before a writ
of habeas corpus can be granted by the federal courts.”
Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The
exhaustion requirement “serves to minimize friction
between our federal and state systems of justice by allowing
the State an initial opportunity to pass upon and correct
alleged violations of prisoners' federal rights.”
Id. When a claim is not exhausted and state court
remedies remain available, the federal court generally
“must . . . dismiss his habeas petition without
prejudice so that the petitioner may return to state court in
order to litigate the claim.” Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004) (citing
Castille v. Peoples, 489 U.S. 346, 349 (1989);
Rose v. Lundy, 455 U.S. 509, 522 (1982); 28 U.S.C.
§ 2254(b)(1)(A)). “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.” 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.
brought this habeas petition before the trial court ruled on
the motion to correct error. The court has since ruled on
that motion. Green has not appealed his conviction or
sentence in the Indiana Court of Appeals and he has not
appealed the trial court's ruling on the motion to
correct errors. He therefore has failed to exhaust his state
court remedies before bringing this habeas petition.
petitioner who has failed to exhaust his state court remedies
may nevertheless obtain federal habeas review 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);
Castille v. Peoples, 489 U.S. 346, 349 n.1 (1989);
Cruz v. Warden, 907 F.2d 665, 668 (7th Cir. 1990).
In other words, a petitioner may be able to bypass state
remedies if those remedies are not meaningful. A habeas
petitioner may also overcome his failure to exhaust if there
has been an inordinate and unjustified delay in the state
court proceedings. Jenkins v. Gramley, 8 F.3d 505,
508 (7th Cir. 1993). But Green has not argued that state
court remedies are not meaningful. He states in his petition
that “Clark County will not respond to my motions . .
., ” but the pendency of the motion to correct
erroneous sentence, which was less than a year, is not the
kind of inordinate delay that will allow him to proceed
directly to this Court.
explained above, Green has failed to exhaust his available
state court remedies before filing this petition for a writ
of habeas corpus. His petition must therefore be dismissed
without prejudice. Judgment consistent with this Entry shall
IS SO ORDERED.
 The Court takes judicial notice of the
docket of the Clark County Court.