Frohwerk v. Superintendent
Filing
25
OPINION AND ORDER: The Court GRANTS 24 the request to lift the stay of the petition; DISMISSES DE 1 the petition WITHOUT PREJUDICE; and DENIES as moot the pending motions DE 20 , 21 , 22 , and 23 . Signed by Judge Rudy Lozano on 11/28/11. cc: Frohwerk (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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)
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)
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)
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CAUSE NO. 2:11-CV-57
OPINION AND ORDER
This matter is before the Court on a Petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus by a person in State
Custody filed by David Frohwerk, a pro se prisoner, on February 15,
2011. (DE# 1.) For the reasons set forth below, the Court: (1)
GRANTS the petitioner’s request (DE# 24) to lift the stay of the
petition; (2) DISMISSES the petition (DE# 1) WITHOUT PREJUDICE; and
(3) DENIES the pending motions (DE## 20, 21, 22, and 23) as moot.
BACKGROUND
In 2009, Frohwerk was convicted of possessing cocaine in St.
Joseph County under Cause No. 71D-02-714-FD-67.1 (DE# 1 at 1.) He
1
After Frohwerk was charged with the cocaine offense, the
state filed petitions to revoke his probation in Cause Nos.
71D03-9710-CF-466 and 71D04-9512-CF-576. Frohwerk v. State, No.
71A03-0906-CR-262, 2009 WL 3754071, at *1 (Ind. Ct. App. Nov. 10,
2009). Frohwerk was sentenced to three years on the cocaine
offense, five years on the 466 case, and four years on the 576
case, all to run consecutively, for an aggregate term of 12
years. Id.
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appealed, and the Indiana Court of Appeals affirmed on November 10,
2009. Frohwerk v. State, No. 71A03-0906-CR-262, 2009 WL 3754071
(Ind. Ct. App. Nov. 10, 2009). The Court of Appeals denied his
petition for rehearing on January 26, 2010. (DE# 7-5 at 20.) On
February 8, 2010, Frohwerk filed a petition for post-conviction
relief in the state trial court claiming ineffective assistance and
other grounds. (DE# 1 at 1.)
In February 2011, while the state post-conviction petition was
pending, Frohwerk filed this federal habeas petition pursuant to 28
U.S.C. § 2254, claiming ineffective assistance of counsel and other
grounds. (DE# 1.) The case was stayed at Frohwerk’s request so that
he could finish exhausting his state court remedies. (DE# 16.)
Frohwerk has now filed multiple documents seeking various forms of
relief from the Court (see DE## 20, 21, 22, 23, 24), which the
Court construes as a request to lift the stay and proceed with this
case. Frohwerk argues that he should be excused from exhausting his
state
court
remedies
due
to
inordinate
governed
by
delay
in
the
state
proceedings. (DE# 24.)
DISCUSSION
This
petition
is
the
provisions
of
the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a
district court to issue a writ of habeas corpus on behalf of a
2
person in custody pursuant to a state court judgment “only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a). Before
considering the merits of a habeas petition, a federal court must
ensure that the petitioner has exhausted all available remedies in
the state courts. 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.
Only if the state courts have had the first opportunity
to hear the claim sought to be vindicated in the federal
habeas proceeding does it make sense to speak of the
exhaustion of state remedies. 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.
Lewis, 390 F.3d at 1025-26 (internal citations and quotation marks
omitted).
Here, Frohwerk concedes that he has not yet exhausted his
state court remedies. He nevertheless argues that he should be
excused from the exhaustion requirement because the state postconviction petition is proceeding too slowly. (DE# 24.)
In exceptional circumstances, federal courts may dispense with
the exhaustion requirement because of delay on the part of the
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state. See Granberry v. Greer, 481 U.S. 129, 135-36 (1987). To
qualify for this exception, the delay must be both “inordinate” and
“unjustifiable.” Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir.
1997). Thus, where the petitioner’s post-conviction petition had
“lain dormant” in state court for more than three years, the
Seventh Circuit held that the district court must conduct a hearing
to determine whether the delay was justifiable. Lowe v. Duckworth,
663 F.2d 42, 43 (7th Cir. 1981). Similarly, in another case the
Seventh Circuit noted that the state’s failure to take action on a
post-conviction petition for more than five years could provide
grounds for excusing the exhaustion requirement. Jackson, 112 F.3d
at 878-79.
Frohwerk’s case does not fall into this exceptional category.
Unlike the above cases, his state post-conviction petition has not
been lying dormant for several years. Instead the record shows that
he filed his post-conviction petition in 2010; since that time the
trial court appointed counsel to represent him and ruled on various
motions he filed. (See DE# 7-3 at 13, 18, 25; DE# 7-5 at 9-10;
DE# 7-6 at 6-7.) Frohwerk also submits documents showing that he
has been in communication with his appointed counsel regarding the
case. (DE# 7-5 at 11-16.) Earlier this year, appointed counsel was
granted leave by the Indiana Court of Appeals to withdraw the trial
record for purposes of review. See Frohwerk v. State, No. 71A030906-CR-262 (Ind. Ct. App. order dated May 2, 2011). In sum,
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although Frohwerk would prefer that his case proceed more quickly,
he has not experienced the type of exceptional delay that would
excuse his failure to exhaust.
Accordingly, Frohwerk’s petition is subject to dismissal. The
Court
must
petition
consider
containing
staying
rather
unexhausted
than
claims
dismissing
when
a
habeas
dismissal
“would
effectively end any chance at federal habeas review.” Dolis v.
Chambers, 454 F.3d 721, 725 (2006). That concern is not present
here.2
As
stated
above,
the
Indiana
Court
of
Appeals
denied
Frohwerk’s petition for rehearing on direct review on January 26,
2010. (DE# 7-5 at 20.) He had 30 days from that date to seek review
in the Indiana Supreme Court. IND. APP. R. 57(C)(2). Before those 30
days elapsed he filed his state post-conviction petition, which
tolled the one-year limitations period for filing a federal habeas
petition. 28 U.S.C. § 2244(d)(1)(A). The deadline for filing a
federal petition will remain tolled while the state post-conviction
proceeding is pending. If Frohwerk acts diligently, he should have
no difficulty returning to federal court once the state proceedings
have concluded.
For
these
reasons,
the
petition
will
be
dismissed.
The
dismissal will be without prejudice to Frohwerk’s right to file a
new petition after the state proceedings conclude. Frohwerk’s
2
Although the Court previously stayed the case at Frohwerk’s
request, he has moved to lift the stay, and the Court finds no
basis for a further stay of the case.
5
motion seeking release on his own recognizance while the federal
petition is pending (DE# 20) will be denied as moot, as will his
other filings seeking various forms of relief in connection with
the petition (see DE## 21, 22, 23).
CONCLUSION
For the reasons set forth above, the Court: (1) GRANTS the
request (DE# 24) to lift the stay of the petition; (2) DISMISSES
the petition (DE# 1) WITHOUT PREJUDICE; and (3) DENIES the pending
motions (DE## 20, 21, 22, and 23) as moot.
DATED: November 28, 2011
/s/ Rudy Lozano, Judge
United States District Court
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