Hickey v. Sheriff
OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner Christopher M Hickey. The Petition is DISMISSED WITHOUT PREJUDICE pursuant to Section 2254 Habeas Corpus Rule 4 because the claims are unexhausted. Petitioner DENIED a ce rtificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Clerk DIRECTED to close this case. Signed by Judge Rudy Lozano on 6/14/17. (Copy mailed to pro se party).(cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
CHRISTOPHER M. HICKEY,
CAUSE NO. 2:17-CV-214
OPINION AND ORDER
This matter is before the Court on the Petition under 28
Christopher Hickey, a pro se petitioner, on May 4, 2017. ECF 1.
For the reasons set forth below, the Court DISMISSES the petition
(ECF 1) WITHOUT PREJUDICE because the claims are unexhausted. The
Court DENIES a certificate of appealability pursuant to Section
2254 Habeas Corpus Rule 11 and leave to appeal in forma pauperis
pursuant to 28 U.S.C. § 1915(a)(3). The Clerk is directed to CLOSE
Christopher Hickey filed a habeas corpus petition attempting
to challenge his incarceration on bond in the Starke County Jail.
ECF 1 at 1. While on parole, Hickey was criminally charged in
66D01-1611-F5-67, and his parole was revoked. Id. Hickey argues
that he should not be held on bond during the pendency of the new
criminal case because he is on parole. ECF 1 at 10.
Before a petitioner can challenge a State proceeding in a
federal habeas corpus petition, he must have previously presented
his claims to the State courts. “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 v. Sternes, 390 F.3d 1019, 1025-1026 (7th
Here, Hickey acknowledges in the petition that he has not yet
raised a challenge to his bond in one complete round of State court
review, which he must do before this court can grant relief. Hickey
has a remedy available in the State court if he believes his bond
is inappropriate. See Vacendak v. State, 302 N.E.2d 779 (Ind. 1973)
(remanding a State habeas corpus proceeding back to the trial court
to conduct a bail hearing); Morris v. Superintendent, No. 1:10CV-320-TS, 2010 WL 3761909, at *1 (N.D. Ind. Sept. 20, 2010). Until
the State process is completed, Morris cannot obtain habeas relief
in federal court. Lewis, 390 F.3d at 1025-26.
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). Here, Hickey’s time to file a
federal habeas corpus claim regarding his bond has not yet begun
effectively end his chance at habeas corpus review and a stay would
not be appropriate.
As a final matter, pursuant to Section 2254 Habeas Corpus
Rule 11, the Court must consider whether to grant or deny a
appealability when the court dismisses a petition on procedural
grounds, the petitioner must show that reasonable jurists would
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). Here, there is no basis for finding that jurists
of reason would debate the correctness of this procedural ruling.
Therefore there is no basis for encouraging him to proceed further
in federal court until he has exhausted his claims in State court.
Thus, a certificate of appealability must be denied. For the same
reasons, he may not appeal in forma pauperis because an appeal
could not be taken in good faith.
The Court DISMISSES the petition (ECF 1) WITHOUT PREJUDICE
pursuant to Section 2254 Habeas Corpus Rule 4 because the claims
are unexhausted. The Court DENIES a certificate of appealability
pursuant to Section 2254 Habeas Corpus Rule 11 and leave to appeal
in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). The Clerk is
directed to CLOSE this case.
DATED: June 14, 2017
/s/RUDY LOZANO, Judge
United States District Court
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