United States District Court, S.D. Indiana, New Albany Division
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
WALTON PRATT, JUDGE.
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. , is GRANTED, and
respondent Attorney General of the State of Indiana's
motion to dismiss, Dkt. , is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
jury trial in December 2015, the state trial court sentenced
Mr. Smith to fifty years' incarceration to be served
consecutively to his federal sentence.
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.
March 22, 2018, Mr. Smith filed this petition for a writ of
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.
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).
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).
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.”).
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)).
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
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 ...