Rhode v. Superintendent
Filing
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OPINION AND ORDER dismissing petition without prejudice pursuant to Section 2254 Habeas Corpus Rule 4. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 9/4/2012. (kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBERT RHODE,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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NO. 3:12-CV-424
OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Robert Rhode on August 10, 2012. For the
reasons set forth below, the petition (DE # 1) is DISMISSED WITHOUT
PREJUDICE pursuant to Section 2254 Habeas Corpus Rule 4.
BACKGROUND
Robert Rhode, pro se prisoner, filed this habeas corpus
petition attempting to challenge his parole revocation on April 10,
2012. He states that he has not presented his claims to the state
courts.
DISCUSSION
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.
Baldwin v. Reese, 541 U.S. 27 (2004); O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Picard v. Connor,
404 U.S. 270, 275 (1971). “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.” Id.
at 276. 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. Boerckel,
526 U.S. at 845. 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. Ibid.
Lewis
v.
Sternes,
390
F.3d
1019,
1025-1026
(7th
Cir.
2004)
(parallel citations omitted).
There are two possible methods for challenging a parole
revocation in Indiana: by filing a post-conviction relief petition,
Receveur v. Buss, 919 N.E.2d 1235 (Ind. Ct. App. 2010), or by
filing a state habeas corpus petition if the inmate is seeking
immediate release. Lawson v. State, 845 N.E.2d 185, 186 (Ind. Ct.
App. 2006). Furthermore, if a state habeas corpus petition is
improperly
filed,
it
will
be
converted
to
a
post-conviction
petition. 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, Rhode has not filed either of those petitions in state
court and has not presented his claims to the Indiana Supreme
Court. Therefore he has not exhausted his State court remedies and
this federal habeas corpus petition must be dismissed.
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CONCLUSION
For the reasons set forth above, the petition (DE # 1) is
DISMISSED WITHOUT PREJUDICE pursuant to Section 2254 Habeas Corpus
Rule 4.
DATED:
September 4, 2012
/s/RUDY LOZANO, Judge
United States District Court
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