United States District Court, N.D. Indiana, South Bend Division
LARRY A. JONES, Petitioner,
OPINION AND ORDER
A. Jones, a prisoner without a lawyer, filed a habeas corpus
petition to challenge his conviction for cocaine possession
and for unlawful possession of a firearm as a serious violent
felon under cause number 82D02-1105-FA543. Following a jury
trial, on November 21, 2013, the Vanderburgh County Superior
Court sentenced Jones to forty years of incarceration. The
Warden responded that the habeas petition should be dismissed
because Jones has not exhausted all of his claims and that
Jones currently proceeds on a post-conviction relief petition
in State court. At the court's request, both parties have
now confirmed that the State court petition remains pending.
ECF 14; ECF 17 at 19-20.
petitioner proceeding under 28 U.S.C. § 2254 must
exhaust State court remedies to obtain federal habeas relief.
28 U.S.C. § 2254(b)(1). The court must ensure that Cowan
has presented his claims “through one complete round of
State-court review.” Lewis v. Sternes, 390
F.3d 1019, 1025-1026 (7th Cir. 2004). “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.” Id.
Jones has not presented his ineffective assistance of trial
counsel claims at every level of the State court system.
Therefore, he has not exhausted his State court remedies.
argues that Brown v. Brown, 847 F.3d 502 (7th Cir.
2017), excuses his failure to exhaust State court remedies
because he now proceeds pro se in the post-conviction
proceedings in State court. In Brown, the Seventh
Circuit Court of Appeals held that the Martinez
doctrine applied to post-conviction relief proceedings under
Indiana law. Id. at 512-13. In Martinez v.
Ryan, 566 U.S. 1, 11 (2012), the Supreme Court of the
United States held, “Where, under state law, claims of
ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.”
Significantly, Martinez and Brown apply
only when petitioners are procedurally barred from presenting
claims in State court. Because Jones retains the opportunity
to present his ineffective assistance of trial counsel claims
to the State courts, these claims are not procedurally
barred. Therefore, Martinez and Brown do
not apply to these claims.
dismissing a habeas corpus petition because it is
unexhausted, “[a] district court [is required] to
consider whether a stay is appropriate [because] the
dismissal would effectively end any chance at federal habeas
review.” Dolis v. Chambers, 454 F.3d 721, 725
(7th Cir. 2006). Here, Jones's one-year limitations
period for federal habeas review began to accrue when his
conviction became final on October 23, 2014. See
Ind. App. R. 57(C) (transfer requests must be filed with the
Indiana Supreme Court within 30 days of the intermediate
appellate court's decision); Gonzalez v. Thayer,
565 U.S. 134, 150 (2012) (when a state prisoner does not
complete all levels of direct review, his conviction becomes
final for purposes of 28 U.S.C. § 2244(d)(1)(A) when the
time for seeking such review expires). Additionally, filing a
motion for post-conviction relief in the State courts tolls
the one-year limitations period. Id. §
2244(d)(2). Jones filed his post-conviction petition in State
court on December 30, 2014, and it remains pending.
Therefore, dismissing this petition will not effectively end
his chance at habeas corpus review because he will have ample
time to return to this court after he exhausts his claim in
State court. In sum, a stay is not appropriate for this case.
to Section 2254 Habeas Corpus Rule 11, the court must
consider whether to grant or deny a certificate of
appealability. To obtain a certificate of appealability when
the petition is dismissed on procedural grounds, the
petitioner must show that reasonable jurists would find it
debatable (1) whether the court was correct in its procedural
ruling and (2) whether the petition states a valid claim for
denial of a constitutional right. Slack v. McDaniel,
529 U.S. 473, 484 (2000). As previously explained, the claim
presented by Jones is unexhausted. Because there is no basis
for finding that jurists of reason would debate the
correctness of this procedural ruling or find a reason to
encourage him to proceed further, a certificate of
appealability must be denied.
these reasons, the court:
(1) DISMISSES WITHOUT PREJUDICE the petition pursuant to
Section 2254 Habeas Corpus Rule 4 because the claim is
(2) DENIES a certificate of appealability pursuant to
Section 2254 Habeas Corpus Rule 11; and