United States District Court, S.D. Indiana, Terre Haute Division
GREG A. CURTIS, Petitioner,
ORDER DENYING PETITION FOR WRIT OF HABEAS
William T. Lawrence, Judge
Greg Curtis is serving a 5-year sentence for his 2017
Vanderburgh County, Indiana convictions forgery, exploitation
of an endangered adult, and theft. He brings this petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. For the reasons that follow, Mr. Curtis's petition
for a writ of habeas corpus 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
April 7, 2017, Mr. Curtis pled guilty to one count of
forgery, one count of exploitation of an endangered adult,
and one count of theft. Dkt. No. 9-1, p. 21. He was sentenced
to a total of five years at the Indiana Department of
Correction (IDOC). Id.
Mr. Curtis waived his rights to an appeal, he filed a notice
of appeal in the Indiana Court of Appeals on August 16, 2017.
Dkt. No. 9-2. The Indiana Court of Appeals dismissed his
appeal on January 24, 2018. See Greg Curtis v. State of
Indiana, Cause No. 82A01-1708-CR-1809.
Cutis has not filed a pro se petition for
post-conviction relief. See generally
Curtis filed this petition for a writ of habeas corpus on
September 22, 2017. Dkt. No.
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).
petition for writ habeas corpus, Mr. Curtis raises four
claims: 1) whether the trial court erred in ordering the
defendant to pay restitution in “violation of Indiana
law;” 2) whether the State committed prosecutorial
misconduct in negotiating his plea agreement; 3) whether his
trial counsel was ineffective throughout the entire criminal
proceeding in Vanderburgh County; and 4) a due process claim
under the Fourteenth Amendment with respect to the plea
bargain process. Dkt. No. 1. Mr. Curtis does raise an
ineffective assistance of counsel claim. However, this has
never been presented to the Indiana Court of Appeals or the
Indiana Supreme Court. Before presenting the claim to a
federal court, Mr. Curtis 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).
Mr. Curtis has not presented any such arguments.
the petitioner must not have any state remedies available to
him at the time he files his federal habeas petition.
Cruz v. Warden of Dwight Correctional Center, 907
F.2d 665, 668 (7th Cir. 1990).
assuming some of his claims were exhausted, federal district
courts may not adjudicate mixed petitions, which contain both
exhausted and unexhausted claims. Rhines v. Weber,
544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455
U.S. 509 (1982)). The reason for dismissing the petition is
because of the doctrine of comity, “teaches that one
court should defer action on causes properly within its
jurisdiction until the courts of another sovereignty with
concurrent powers, and already cognizant of the litigation,
have had an opportunity to pass upon the matter.”
Id. at 274 (quoting Rose, 455 U.S. at 518)
(quotation marks omitted). Thus, a petitioner must complete
“total exhaustion” before a federal district
court will adjudicate the habeas petition. Id.
Curtis must exhaust his state court remedies by filing a
petition for post-conviction relief before he can file a
habeas petition. Mr. Curtis is notified that there are strict
time lines for filing a petition for writ of habeas corpus in
28 U.S.C. § 2254. “Under 28 U.S.C. §
2244(d)(1)(A), a state prisoner seeking federal habeas relief
has just one year after his conviction becomes final in state
court to file his federal petition.” Gladney v.
Pollard, 799 F.3d 889, 894 (7th Cir. 2015). “The
one-year clock is stopped, however, during the time the
petitioner's ‘properly ...