United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Ebony-Sharee Henderson filed a habeas corpus petition
attempting to halt the prosecution against her in Cause No.
71D08-1807-F6-729, pending in the St. Joseph Superior Court.
ECF 1. She complains about the State's conduct in the
plea negotiation in that case. The court is obligated to
review the petition and dismiss it if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. . . .” Rule 4 of
the Rules Governing Section 2254 Cases.
to the petition, charges were filed against her on July 31,
2018. She was offered a plea agreement, but argues that the
State will not abide by its terms. The online public docket
reveals that her case is pending and trial is scheduled for
January 3, 2019.
k5HUTRNek15T0RFMk1UQXhPakl3T1RJNE1ETXpZems9In19 (last visited
Oct. 17, 2018).
claim in Henderson's petition is governed by the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See Lindh v. Murphy, 521 U.S.
320, 336 (1997). AEDPA allows a federal court to issue a writ
of habeas corpus on behalf of a person in custody pursuant to
a state court judgment “on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Before
considering the merits of Henderson's claim, however, the
court must ensure that the petitioner has exhausted all
available remedies in the state courts. 28 U.S.C. §
2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025
(7th Cir. 2004). As the Seventh Circuit has explained:
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. . . . Fair presentment in turn requires the
petitioner to assert his federal claim through one complete
round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings. 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.
Lewis, 390 F.3d at 1025-26 (internal citations and
quotation marks omitted). Simply put, Henderson must appeal
her claim through the Indiana Court of Appeals and then ask
the Indiana Supreme Court to take the case. Here, Henderson
has not even been convicted. As such she has not yet fully
litigated her claim in the trial court, much less presented
her claim to the Indiana Supreme Court, as required.
Therefore she has not exhausted her State court remedies and
the claim in her habeas corpus petition must be dismissed
without prejudice. If, after she has ultimately presented all
of her claims to the Indiana Supreme Court, she has not yet
obtained relief, then she may return to this court and file a
new habeas corpus petition.
dismissing her petition because the claim 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,
Henderson has not yet been brought to trial. Therefore, none
of the 1-year period of limitation set forth in 28 U.S.C.
§ 2244(d) has expired. Thus, the dismissal of this
petition will not end her chance of federal review after she
exhausts her State court remedies.
final matter, pursuant 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, the petitioner must make a substantial showing
of the denial of a constitutional right by establishing
“that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quote marks and citation omitted). When the
court dismisses the petitioner's claim on procedural
grounds, the determination of whether a certificate of
appealability should issue has two components. Id.
at 484-85. First, the petitioner must show that reasonable
jurists would find it debatable whether the district court
was correct in its procedural ruling. Id. at 484.
Next, the petitioner must show that reasonable jurists would
find it debatable whether the petition states a valid claim
for the denial of a constitutional right. Id. Each
is a threshold inquiry; thus, only one component needs to be
addressed if it will resolve the issue. Id. at 485.
explained above, Henderson has not yet exhausted her state
court remedies with regard to her claim surrounding the plea
negotiations in her criminal case, and so her petition must
be dismissed. A dismissal without prejudice for failure to
exhaust state court remedies is not an appealable order,
unless the petitioner would be time-barred or otherwise
precluded from returning to federal court after exhausting
her state court remedies. Dolis, 454 F.3d at 723;
Moore v. Mote, 368 F.3d 754 (7th Cir. 2004). That
issue is not presented here, and so the dismissal order would
not be appealable. Moreover, nothing before the court
suggests that jurists of reason could debate the correctness
of this procedural ruling or find a reason to encourage
Henderson to proceed further without first exhausting her
state court remedies.
these reasons, the petition (ECF 1) is DISMISSED WITHOUT
PREJUDICE pursuant to Rule 4 of the Rules Governing Section
2254 Cases, and the ...