United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING MOTION TO DISMISS PETITION FOR A WRIT
OF HABEAS CORPUS
Patrick Hanlon United States District Judge
Fabian White filed this petition for a writ of habeas corpus
challenging his 2005 Indiana state court convictions for
murder, attempted murder, and escape. The respondent has
moved to dismiss the petition, arguing that Mr. White has
failed to exhaust his state court remedies. Indeed, Mr. White
has failed to exhaust, so the motion to dismiss, dkt. , is
GRANTED, and this action is
Background and Procedural History
White was convicted in 2005 of murder, attempted murder, and
escape. White v. State, 849 N.E.2d 735, 738
(Ind.Ct.App. 2006). The trial court sentenced him to a
combined 115-year prison term. Id. at 738-39. Mr.
White appealed, raising issues related to jury instructions
and sentencing. Id. at 739. The Indiana Court of
Appeals affirmed. Id. at 745. On October 26, 2006,
the Indiana Supreme Court denied leave to transfer. Dkt. 5-1
September 28, 2007, Mr. White filed a petition for
post-conviction relief in Indiana state court. Dkt. 5-3 at 2.
The trial court denied relief in December 2018. Id.
at 11. Mr. White's appeal remains pending in the Indiana
Court of Appeals. The appeal was dismissed on November 15,
2019, but then reinstated on November 26, 2019.
February 11, 2019, Mr. White filed a petition for a writ of
habeas corpus in this Court. White v. Zatecky, No.
1:19-cv-00611-JMS-DML. That action was dismissed without
prejudice for failure to exhaust.
31, 2019, Mr. White filed the currently pending petition for
a writ of habeas corpus in this Court, alleging ineffective
assistance of trial counsel. Dkt. 1. The respondent has moved
to dismiss the petition for failure to exhaust state
remedies. Dkt. 5.
seeking habeas corpus review in federal court, a petitioner
must exhaust his available state court remedies. 28 U.S.C.
§ 2254(b)(1). To satisfy the statutory exhaustion
requirement, a petitioner must “fairly present his
federal claim to the state courts through one complete round
of state court review, whether on direct appeal or in
post-conviction proceedings.” Whatley v.
Zatecky, 833 F.3d 762, 770-71 (7th Cir. 2016).
White has not exhausted his state court remedies. His habeas
claims all allege ineffective assistance of trial counsel, a
ground he did not raise on direct appeal. And his state
post-conviction appeal remains pending.
is no basis to stay the petition. As the Court explained in
dismissing Mr. White's February 2019 habeas corpus
petition, dismissal without prejudice will not prevent Mr.
White fro m filing a timely § 2254 petition when his
state proceedings are complete. White v. Zatecky,
No. 1:19-cv-00611-JMS-DML, dkt. 6 (May 6, 2019) (“Mr.
White ‘can easily return to state court, conclude his
pending action, and then submit the state court decision'
in another federal habeas petition with this Court.”
(quoting Moore v. Mote, 368 F.3d 754, 755 (7th Cir.
Certificate of Appealability
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). “A certificate of appealability may
issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
claim is resolved on procedural grounds (such as failure to
exhaust), a certificate of appealability should issue only if
reasonable jurists could disagree about the merits of the
underlying constitutional claim and about whether
the procedural ...