Hickey v. Sheriff

Filing 6

OPINION AND ORDER: The petition is DISMISSED WITHOUT PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Signed by Senior Judge James T Moody on 5/16/2017. (Copy mailed to pro se party) (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CHRISTOPHER M. HICKEY,

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Petitioner,
v.
SHERIFF,
Respondent.

No. 2:17 CV 213

OPINION and ORDER
Christopher M. Hickey, a pro se prisoner, filed a habeas petition under 28 U.S.C.
§ 2254 challenging a state conviction. (DE # 1.) Pursuant to RULE 4 OF THE RULES
GOVERNING SECTION 2254 CASES, the court is obligated to review the petition and
dismiss it if “it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]”
The petition is not a model of clarity, but it can be discerned that he recently
went before the Indiana Parole Board, and his parole was revoked. Hickey filed this
federal petition, claiming that his rights have been violated in connection with the
Parole Board’s refusal to release him from his original sentence. (Id. at 10.) His petition
is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA allows a district court to issue
a writ of habeas corpus on behalf of a person in custody pursuant to a state court
judgment “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, 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 the U.S. Court of Appeals for 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.
Lewis, 390 F.3d at 1025-26 (internal citations and quotation marks omitted). Until
exhaustion has occurred, federal habeas relief is not available. See id.
There are two possible methods for challenging a parole determination in
Indiana court: by filing a state post-conviction petition, Receveur v. Buss, 919 N.E.2d 1235
(Ind. Ct. App. 2010), or by filing a state habeas petition. Lawson v. State, 845 N.E.2d 185,
186 (Ind. Ct. App. 2006). If a state habeas petition is improperly filed, it will be
converted to a post-conviction petition and processed accordingly. Hardley v. State, 893
N.E.2d 740, 743 (Ind. Ct. App. 2008); Ward v. Ind. Parole Bd., 805 N.E.2d 893 (2004). Here,
Hickey acknowledges that he has not yet presented his claims to the state courts
through either of these two channels. (See DE # 1 at 11.) Therefore, he has not yet
exhausted his state court remedies. Until he does so, he cannot obtain federal habeas
relief. 28 U.S.C. § 2254(b)(1)(A). Accordingly, the petition will be dismissed, but the

dismissal will be without prejudice to his right to file a new petition after exhausting his
available state court remedies.1
For these reasons, the petition (DE # 1) is DISMISSED WITHOUT PREJUDICE
pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES.
SO ORDERED.
Date: May 16, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

1

Courts considering the issue have held that 28 U.S.C. § 2244(d)(1)(D) supplies the deadline for a
habeas petition challenging a state parole determination. Thus, the one-year deadline would run from the
date of the parole decision, absent any period of tolling. See Brown v. Barrow 512 F.3d 1304 (11th Cir. 2008);
Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006); Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir.
2003); Wade v. Robinson, 327 F.3d 328, 332-33 (4th Cir. 2003); Cook v. N.Y. State Division of Parole, 321 F.3d
274, 280 (2d Cir. 2003); Kimbrell v. Cockrell, 311 F.3d 361, 362-64 (5th Cir. 2002). Hickey seems to be well
within a year of the Indiana Parole Board’s decision denying him release from his original sentence, and
the federal deadline would be stayed during the time he has a properly filed state petition for collateral
review pending. 28 U.S.C. § 2244(d)(2). If he acts diligently, he should have sufficient time to return to
federal court after the state proceedings have concluded.