United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
V. Lapsley, a prisoner without a lawyer, filed a habeas
corpus petition to challenge his conviction for aggravated
battery and criminal recklessness under No. 20D5-1312-FB-247.
Following a jury trial, on August 7, 2014, the Allen Superior
Court sentenced him as a habitual offender to seventy-eight
years of incarceration. Pursuant to Section 2254 Habeas
Corpus Rule 4, I 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
considering the merits of a habeas petition, I 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 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.
Id. at 1025-26 (citations omitted). Until exhaustion
has occurred, federal habeas relief is not available.
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, Lapsley argues that he is entitled to habeas relief
because the trial court failed to properly instruct the jury
on the elements of aggravated battery. However, Lapsley
states that he did not present this argument to the Indiana
Supreme Court because he did not know how. He further states
that, on June 27, 2019, the Court of Appeals of Indiana
issued its most recent decision on Lapsley's case, which
indicates that he can no longer file a petition to transfer
and that this claim is procedurally barred. See Ind.
App. R. 57(C)(1) (petition to transfer must be filed within
45 days of adverse decision from the Court of Appeals of
Indiana if rehearing not sought). While there are limited
exceptions in which a petitioner may obtain habeas relief
despite a procedural bar, the petitioner's lack of
knowledge is not among them. See Maples v. Thomas,
565 U.S. 266, 280 (2012) (quotation omitted) (emphasis in
original) (“Cause for a procedural default exists where
something external to the petitioner, something that
cannot fairly be attributed to him, impeded his efforts to
comply with the State's procedural rule.”). Senaca
also argues that he did not receive a hearing on his petition
for post-conviction relief in State court, but this claim
suffers from the same procedural deficiencies and does not
present a cognizable ground for habeas relief. See
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)
(stating that States have no obligation to provide an avenue
for post-conviction relief). Consequently, based on the face
of the petition, Lapsley is not entitled to habeas relief.
I observe that Lapsley's explanation of why he did not
present his jury instruction claim to the Indiana Supreme
Court is both vague and difficult to parse. It may be the
case that he has a more robust explanation, and, given his
pro se status, I will grant him leave to file an amended
petition. However, Lapsley should only file an amended
petition if he believes he can adequately address this
deficiency. If he chooses to file an amended petition, he
should use this court's form habeas petition, AO-241
(Rev. 1/15) (Conviction, INND Rev. 8/16), which he can obtain
at the prison law library.
final matter, Lapsley has not resolved his filing fee status.
To proceed with this case, he must either immediately pay the
$5.00 filing fee in full or file a motion for leave to
proceed in forma pauperis. If he chooses to file a motion for
leave to proceed in forma pauperis, he must attach his prison
account summary for the last six months.
these reasons, the court:
(1) DENIES the habeas petition (ECF 1);
(2) GRANTS Senaca V. Lapsley until November 4, 2019,
to file an amended petition and to resolve his filing fee
(3) CAUTIONS Senaca V. Lapsley that, if he does not respond
by this deadline, this case will be dismissed ...