United States District Court, N.D. Indiana, South Bend Division
CHARLES A. MOON, JR., Petitioner,
OPINION AND ORDER
L. MILLER, JR. JUDGE
A. Moon, Jr., a prisoner without a lawyer, filed a habeas
corpus petition to challenge his convictions for resisting
arrest under Nos. 34D01-1707-F4-797 and 34D01-1707-F4-860.
Following a guilty plea, on March 22, 2018, the Howard
Superior Court sentenced him to ten years of incarceration.
Under Section 2254 Habeas Corpus Rule 4, the court must
dismiss the petition “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
considering the merits of a habeas petition, the court must
ensure that the petitioner has exhausted all available
remedies in state court. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004). As our court of appeals 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.
Id. at 1025-26. Federal habeas relief isn't
available until exhaustion has occurred. Id.
Further, “[a] petitioner's failure to fairly
present each habeas claim to the state's appellate and
supreme court in a timely manner leads to a default of the
claim, thus barring the federal court from reviewing the
claim's merits.” Smith v. McKee, 598 F.3d
374, 382 (7th Cir. 2010).
petition, Mr. Moon indicates that, on September 22, 2018, he
received a decision from the Court of Appeals of Indiana on
direct appeal, and he didn't present any of his claims to
the Indiana Supreme Court. The petition thus indicates that
the time for him file a petition to the Indiana Supreme Court
on direct appeal has expired. See Ind.App. R. 57(C)
(petition to transfer must be filed within 45 days of adverse
decision from the Court of Appeals of Indiana). Because Mr.
Moon didn't present his claims to the Indiana Supreme
Court in a timely manner, his claims are both unexhausted and
procedurally defaulted. Mr. Moon offers no basis for excusing
procedural default, and the petition will be dismissed.
dismissing a habeas corpus petition because it 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). Mr. Moon's one-year limitations period
for federal habeas review began to accrue when his conviction
became final on November 6, 2018. See Gonzalez v.
Thayer, 565 U.S. 134, 150 (2012) (when a state prisoner
does not complete all levels of direct review, his conviction
becomes final for purposes of 28 U.S.C. § 2244(d)(1)(A)
when the time for seeking such review expires). Filing a
petition for post-conviction relief in State court tolls the
one-year limitations period. Id. § 2244(d)(2).
Though the claims in the petition are procedurally barred,
Mr. Moon might want to raise other claims in State court in
post-conviction proceedings. At this point, he has more than
two months of the limitations period remaining, which is
ample time for him to initiate State post-conviction
proceedings and to file another habeas petition in federal
court thereafter. Dismissing this petition will not
effectively end his chance at habeas corpus review, and a
stay is not appropriate for this case.
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 court
dismisses a petition 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). There is no basis for finding that jurists
of reason would debate the correctness of today's
procedural ruling, so there is no basis for encouraging Mr.
Moon to proceed further in federal court.
these reasons, the court:
DISMISSES without prejudice the petition (ECF 1) pursuant to
Rule 4 of the Rules Governing Section 2254 Cases because the
claims are procedurally defaulted;
WAIVES the filing fee;
DENIES Charles A. Moon, Jr., a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11; and
DIRECTS the clerk ...