United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALBILITY
WALTON PRATT, JUDGE
petition for writ of habeas corpus, petitioner Mark Brown
challenges the Indiana Department of Correction's
(“IDOC”) calculation of credit time at the date
of his sentencing for his 2014 rape conviction in Vanderburgh
County, Indiana. The respondent argues that the petition must
be denied because it is time-barred, non-cognizable,
meritless, and procedurally defaulted. Mr. Brown has not
replied and the time to do so has passed. The Court finds
that Mr. Brown's claim is unexhausted. Therefore, his
petition for a writ of habeas corpus must be dismissed
without prejudice. In addition, the Court finds that a
certificate of appealability should not issue.
April 10, 2014, pursuant to a plea agreement, Mr. Brown was
sentenced to twenty years' incarceration for rape. Dkt.
6-1. He did not seek either direct review of his conviction
or post-conviction relief. Id.
25, 2018, Mr. Brown filed his petition for writ of habeas
corpus in this Court. One month later, on July 25, 2018, he
filed a “Motion for Court to Grant Good Earned Credit
Time and Additional Good Earned Credit Time” in the
state trial court. On July 31, 2018, the trial court denied
the motion noting that Mr. Brown received the 880 days for
which he claims he was not credited. He did not appeal.
protect the primary role of state courts in remedying alleged
constitutional errors in state criminal proceedings, federal
courts will not review a habeas petition unless the prisoner
has fairly presented his claims throughout at least one
complete round of state-court review, whether on direct
appeal of his conviction or in post-conviction
proceedings.” Johnson v. Foster, 786 F.3d 501,
504 (7th Cir. 2015) (citation and quotation marks omitted);
see 28 U.S.C. § 2254(b)(1)(A). “Fair
presentment requires . . . the petitioner [to] raise the
issue at each and every level in the state court system,
including levels at which review is discretionary rather than
mandatory, ” such as the Indiana Supreme Court.
King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016)
(citation and quotation marks omitted). “A habeas
petitioner who has exhausted his state court remedies without
properly asserting his federal claim at each level of state
court review has procedurally defaulted that claim.”
Id. (citation and quotation marks omitted).
Brown has not exhausted his claim in state court. He filed a
motion for credit time in state court after filing his
federal habeas petition, but he did not appeal when the trial
court denied his motion. Furthermore, the respondent argues
that Indiana law requires inmates to exhaust their
administrative remedies within the IDOC before bringing
time-calculation claims in state court. See Neff v.
State, 888 N.E.2d 1249 (Ind. 2008).
respondent argues that Mr. Brown's claim is procedurally
defaulted and that his petition should be denied with
prejudice, but it appears that Mr. Brown could still exhaust
his administrative remedies and seek post-conviction relief
in state court. Therefore, his petition is dismissed
without prejudice for failure to exhaust state court
Certificate of Appealability
“A state prisoner whose petition for a writ of habeas
corpus is denied by a federal district court does not enjoy
an absolute right to appeal.” Buck v. Davis,
137 S.Ct. 759, 773 (2017). Instead, a state prisoner must
first obtain a certificate of appealability. See 28
U.S.C. § 2253(c)(1). Rule 11(a) of the Rules Governing
Section 2254 Proceedings in the United States District Courts
requires the district court to “issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” No reasonable jurist would
find it “debatable whether [this Court] was correct in
its procedural ruling” that Mr. Brown has failed to
exhaust his state court remedies. Slack v. McDaniel,
529 U.S. 473, 484 (2000). Therefore, a certificate of
appealability is denied.
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is dismissed without prejudice
and a certificate of appealability shall not issue. ...