United States District Court, N.D. Indiana, South Bend Division
TERRANCE E. LACEY, SR., Petitioner,
OPINION AND ORDER
E. Lacey, Sr., a prisoner without a lawyer, filed an
unsigned habeas corpus petition to challenge his
conviction for manufacture and distribution of a substance
represented to be a controlled substance under Cause No.
2D04-1705-F5-131. On November 9, 2017, following a guilty
plea, the Allen Circuit Court sentenced Lacey to five years
of incarceration with two years suspended subject to two
years of probation.
considering the merits of Lacey's habeas corpus petition,
this court must ensure that he has presented his claims
“through one complete round of State-court
review.” Lewis v. Sternes, 390 F.3d 1019,
1025-1026 (7th Cir. 2004). “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.” Id.
not the first time that Lacey has challenged this conviction
in federal court. When he brought this claim previously, it
was dismissed because he had not yet exhausted his claims in
state court. Lacey v. Warden, 3:18-CV-343 (order
dismissing case dated June 11, 2018). Lacey now represents
that he has exhausted his State court remedies, and yet his
petition makes clear that he has not yet completed one
complete round of State court review. He indicates that he
did not file a direct appeal. And, while he filed a petition
for post-conviction relief, he indicates that he did not
appeal the outcome of that petition. While Lacey also
represents that he has presented three of his four grounds to
the Indiana Supreme Court, a review of the dockets in each of
the three cause numbers he references in his petition
(02D04-1705-F5-131, 02D06-1712-PC-120, and 18A-CR-03127)
demonstrates this assertion is not accurate. Therefore, he
has not exhausted his State court remedies and this case must
be dismissed without prejudice so that he can exhaust his
claims in the State courts. Lacey is again advised that if,
after he has ultimately presented his claims to the Indiana
Supreme Court, he has not yet obtained relief, then he may
return to federal court and file a new habeas corpus
dismissing a habeas corpus petition because it is
unexhausted, the court must “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,
Lacey's one-year limitations period for federal habeas
review began to accrue when his conviction became final.
See 28 U.S.C. § 2244(d)(1)(A). Lacey was
sentenced on November 9, 2017, and he did not appeal his
conviction. When a State prisoner does not complete all
levels of direct review, his conviction becomes final when
the time for seeking such review expires. Gonzalez v.
Thayer, 565 U.S. 134, 150 (2012). Appeals to the Court
of Appeals of Indiana must be filed within thirty days of the
trial court's judgment. This means that Lacey's
conviction became final on December 9, 2017. He filed his
petition for post-conviction relief on December 27, 2017.
Filing a motion for post-conviction relief in the State
courts tolls the one-year limitations period. Id.
§ 2244(d)(2). Therefore, dismissing this petition will
not effectively end his chance at habeas corpus review
because he will have ample time to return to this court after
he exhausts his claim in State court. In sum, a stay is not
appropriate for this case.
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 when
the petition is dismissed on procedural grounds, the
petitioner must show that reasonable jurists would find it
debatable (1) whether the court was correct in its procedural
ruling and (2) whether the petition states a valid claim for
denial of a constitutional right. Slack v. McDaniel,
529 U.S. 473, 484 (2000). As previously explained, the claims
presented by Lacey are unexhausted. Because there is no basis
for finding that jurists of reason would debate the
correctness of this procedural ruling or find a reason to
encourage him to proceed further, a certificate of
appealability must be denied.
these reasons, the court:
DISMISSES WITHOUT PREJUDICE the petition pursuant to Section
2254 Habeas Corpus Rule 4 because the claims are unexhausted;
DENIES a certificate of appealability pursuant to Section
2254 Habeas Corpus Rule 11; and
DIRECTS the clerk to close this case.
 Although the petition is not signed as
required by Federal Rule of Civil Procedure 11(a), it would
be pointless to have Lacey submit a signed version of the
petition, because it must ...