United States District Court, S.D. Indiana, Indianapolis Division
WUAN L. CLARK, Petitioner,
ORDER DISMISSING PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DIRECTING
ENTRY OF FINAL JUDGMENT
WILLIAM T. LAWRENCE, SENIOR JUDGE.
August 6, 2012, petitioner Wuan L. Clark plead guilty to
non-support of a dependent child in Madison County, Indiana,
case number 48C03-1107-FC-001357. He was sentenced to seven
years imprisonment with five years of that term suspended.
During the execution of his prison term, Mr. Clark was
approved for placement in the Community Transition Program
(CTP). He was released from prison and placed in the CTP, but
just a few weeks later the community corrections program
alleged that he had violated the rules of the CTP. On the
same date the allegations were made, November 20, 2017, the
state court ordered Mr. Clark back into prison custody where
he remains today. In this 28 U.S.C. § 2254 action, Mr.
Clark seeks habeas corpus relief on grounds of (1)
ineffective assistance of counsel and (2) an “erroneous
sentence.” In a letter to the Court received on May 31,
2018, Mr. Clark appears to ask the Court to disregard these
issues, and asserts that his only complaint in this Court is
that he did not receive a written write-up or a hearing on
the reason for his CTP violation, and he believes that was a
due process violation. See Dkt. No. 7. For the
reasons set forth below, this Court will not address the
viability of the substantive issues.
Exhaustion and Respondent's Answer
Clark indicates that he has a post-conviction proceeding
pending, and that he raised issues challenging his CTP
revocation. But he also writes that he has not yet received a
decision on his post-conviction action. Respondent, answering
the instant action, asserts that Mr. Clark has not exhausted
state court remedies, because his post-conviction case is
pending, and therefore seeks the dismissal of this action on
grounds of Mr. Clark's failure to first exhaust his state
court remedies. Respondent also contends that the trial court
has ruled against Mr. Clark and no appeal has ever been
filed. Mr. Clark has not replied to respondent's answer
to address these arguments.
record is not at all clear, as to whether Mr. Clark has a
pending state post-conviction action, but it is clear that
Mr. Clark has not pursued an appeal - on any issue - to the
Indiana appellate courts. Thus any claim he might have is
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.”
Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009);
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. 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
respondent has shown that Mr. Clark has never presented
claims challenging his current incarceration to the Indiana
Supreme Court. Dkt. No. 10, ex. 1. His state court
post-conviction challenge, Madison County Circuit Court case
number 48C03-1406-PC-000030, may still be pending. But
clearly Mr. Clark has not presented his claims to the Indiana
Court of Appeals or the Indiana Supreme Court. His claims are
therefore not yet exhausted, and thus not ripe for federal
habeas corpus review.
petitioner may obtain federal habeas relief on unexhausted
claims only when “(1) there is an absence of available
State corrective process;” or “(2) circumstances
exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. §
2254(b)(1)(B). Mr. Clark has not provided any reason why the
exhaustion requirement does not apply in this case. As noted
above, he did not reply to respondent's answer and
request to dismiss this action. The Court finds that
Indiana's court system provides an effective process to
protect Mr. Clark's rights in this case.
petition, containing only unexhausted claims, is
dismissed. Rose v. Lundy, 455 U.S.
509, 522 (1982). The dismissal is without prejudice. The
federal limitations period imposed by 28 U.S.C. §
2244(d) has been tolled since Mr. Clark filed his state
post-conviction application. There appears to be no need for
an abeyance pursuant to Slack v. McDaniel, 529 U.S.
473 (2000), and indeed, Mr. Clark has not asked for an
judgment consistent with this Order shall now enter.