Powell v. Superintendent
Filing
6
OPINION AND ORDER DISMISSING CASE without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 cases and denies Petitioner a certificate of appealability. ***Civil Case Terminated. Signed by Chief Judge Philip P Simon on 6/30/2011. (kds)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JEFFREY D. POWELL, II,
Petitioner,
vs.
SUPERINTENDENT,
Miami Correctional Facility,
Respondent.
)
)
)
)
)
)
)
)
)
)
CAUSE NO. 3:11-CV-248 PS
OPINION AND ORDER
Petitioner Jeffrey Powell, a prisoner confined at the Miami Correctional Facility,
submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
2010 conviction in the Fayette Circuit Court in Connersville, Indiana, for dealing in and
possession of a controlled substance, and other offenses, for which he received a sentence of 20
years imprisonment [DE 1].
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, district courts are
obligated to review a habeas corpus petition and to dismiss it if “it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief . . . .” 28 U.S.C. §
2254. This rule provides district courts with a gatekeeping responsibility to sift through habeas
corpus petitions and dismiss those that obviously lack merit.
Section 2254(b)(1)(A) provides that an application for a writ of habeas corpus by a state
prisoner shall not be granted unless “the applicant has exhausted the remedies available in the
courts of the State.” 28 U.S.C. 2254(b)(1)(A). To fully exhaust his state court remedies, a
habeas petitioner must seek discretionary review from the State’s highest court where that
review is normal, simple, and an established part of the State’s appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845-46 (1999). Failure to exhaust available state court
remedies constitutes a procedural default. Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002). To avoid a procedural default, a petitioner must have presented his federal claims to the
state courts before he seeks federal review of these claims. O’Sullivan, 526 U.S. at 844.
Powell pled guilty to the charges against him, and did not take a direct appeal from his
conviction [DE 1 at 1]. He states that he filed a petition for post-conviction relief on February
15, 2010 [Id.]. But he concedes that he has not presented the claims he raised in his petition for
post-conviction relief to the Court of Appeals of Indiana or the Indiana Supreme Court [Id. at 12]. Additionally, for each of the grounds for relief he presents, Powell checked “no” in answer
to the question “Did you present [this] ground . . . to the Indiana Supreme Court” [Id. at 3].
Section 2254(b)(1)(A) forbids a federal court from excusing the exhaustion requirement
unless the state’s corrective process is incapable of protecting the rights of the applicant. There
is no suggestion here that Indiana’s corrective process is not capable of protecting the rights of
the applicant, and Powell’s petition does not meet the requirements necessary for this Court to
excuse the exhaustion doctrine. Accordingly, the Court must dismiss this petition because it
establishes on its face that Powell has not exhausted his state court remedies. The dismissal will
be without prejudice to Powell’s right to file a new petition for writ of habeas corpus raising
these claims if he is able to exhaust his state court remedies on the claims presented in his
petition for post-conviction relief.
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the Court must
now consider whether to grant Powell a certificate of appealability. To obtain a certificate of
appealability, a petitioner must make a substantial showing of the denial of a constitutional right
by establishing “that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
2
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Where, as here, a court dismisses a petition on procedural grounds, the determination of
whether a certificate of appealability should issue has two components. Id. at 484–85. First, the
petitioner must show that reasonable jurists would find it debatable whether the court was
correct in its procedural ruling. Id. at 484. Second, the petitioner must show that reasonable
jurists would find it debatable whether the petition states a valid claim for denial of a
constitutional right. Id. To obtain a certificate of appealability, the petitioner must satisfy both
components. Id. at 485.
As I noted, Powell has not exhausted his state court remedies as to any of the claims he
wishes to present to the Court. And he has not established that jurists of reason would debate the
correctness of this procedural ruling. Accordingly, I decline to issue Powell a certificate of
appealability.
For the foregoing reasons, the Court DISMISSES this petition [DE 1] without prejudice
pursuant to Rule 4 of the Rules Governing Section 2254 Cases, and DENIES the Petitioner a
certificate of appealability.
SO ORDERED.
ENTERED: June 30, 2011
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?