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Smith v. Warden FCI Pekin

United States District Court, S.D. Indiana, New Albany Division

August 29, 2018

JOHN SMITH, Petitioner,
v.
WARDEN FCI Pekin, ATTORNEY GENERAL OF THE STATE OF INDIANA, Respondents.

          ORDER GRANTING MOTION TO PLACE THE MOVANT'S 28 U.S.C. § 2254 PETITION AND PROCEEDINGS IN ABEYANCE, DENYING MOTION TO DISMISS, AND STAYING THE ACTION

          TANYA WALTON PRATT, JUDGE.

         Petitioner John Smith is currently incarcerated in the Federal Correctional Institution - serving a 216 months term of incarceration followed by 8 years of supervised release, which was imposed by the Northern District of Illinois on April 6, 2015, in No. 13-CR-863-1. See Dkt. 16 at 1. John Smith's petition for a writ of habeas corpus challenges his conviction and 50-year sentence in Dearborn County, Indiana, No. 15D02-1402-FA-0006, for conspiracy to commit dealing in narcotic drugs. For the reasons that follow, petitioner John Smith's motion to place the movant's 28 U.S.C. § 2254 petition and proceedings in abeyance, Dkt. [17], is GRANTED, and respondent Attorney General of the State of Indiana's motion to dismiss, Dkt. [20], is DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         After a jury trial in December 2015, the state trial court sentenced Mr. Smith to fifty years' incarceration to be served consecutively to his federal sentence.

         Mr. Smith appealed, arguing that the trial court erred in admitting evidence found during the search of his car and that his sentence was in appropriate. On December 20, 2016, the Indiana Court of Appeals affirmed the conviction and sentence. Smith v. State, 2016 WL 7368020 (Ind., Ct. App. Dec. 20, 2016); Dkt. 20-3. On March 23, 2017, the Indiana Supreme Court denied his petition to transfer.

         On March 22, 2018, Mr. Smith filed[1] this petition for a writ of habeas corpus.

         The Court notes that the Mr. Smith filed a petition for post-conviction relief, No. 15D02-1808-PC-000011, in Dearborn Superior Court 2, on August 6, 2018.

         II. DISCUSSION

         “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. In Indiana, that means presenting his arguments to the Indiana Supreme Court. Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001).

         In his petition, Mr. Smith raises six claims of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. See Dkt. 1 at 5-10, 16-18. Mr. Smith concedes that he has not exhausted his state court remedies as to any of the claims in his petition. See Dkt. 1 at 10-11; Dkt. 17. Instead, Mr. Smith asks that the Court stay this § 2254 petition pursuant to Rhines v. Weber, 544 U.S. 269, 278 (2005).

         “When a district court's order dismissing a petition without prejudice will ‘effectively end any chance at federal habeas review,' that is, when there is a substantial risk that it comes too late for the prisoner to re-file, district courts are to consider whether a stay might be more appropriate than an outright dismissal, regardless of whether the petitioner has made such a request.” Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008); see also Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006) (“A district court [is required] to consider whether a stay is appropriate [because] the dismissal would effectively end any chance at federal habeas review.”).

         In an attempt to “curb delays, to prevent ‘retrials' on federal habeas, and to give effect to state convictions to the extent possible under law, ” Congress, as part of AEDPA, revised several statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). “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 filed' application for state postconviction relief ‘is pending.'” Day v. McDonough, 547 U.S. 198, 201 (2006) (quoting 28 U.S.C. § 2244(d)(2)).

         Mr. Smith's conviction and sentence became final when the time to seek certiorari in the United States Supreme Court expired following his direct appeal. 28 U.S.C. § 2244(d)(1)(A). Because the Indiana Supreme Court denied transfer on March 23, 2017, the time to seek certiorari expired on June 21, 2017. See Rule 13 of Rules of the Supreme Court of the United States. The one-year period of limitation began running on that date. Mr. Smith's § 2254 petition filed on March 22, 2018, was therefore timely.

         However, Mr. Smith did not file a post-conviction petition in state court until August 8, 2018. If the Court dismisses Mr. Smith's § 2254 petition at this time, any subsequent § 2254 petition would be untimely as Mr. Smith's state post-conviction petition was filed just over thirteen months after his conviction and ...


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