Luebcke v. Superintendent
Filing
5
OPINION AND ORDER: Court DISMISSES this petition for writ of habeas corpus, without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court, and DENIES the Petitioner a certificate of appealability. Signed by Judge William C Lee on 9/19/2012. cc: Luebcke (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RAYMOND LUEBCKE,
Petitioner,
v.
SUPERINTENDENT, WESTVILLE
CORRECTIONAL FACILITY,
Respondent.
)
)
)
)
)
)
)
)
)
)
CAUSE NO. 3:12-CV-439 WL
OPINION AND ORDER
Petitioner Raymond Luebcke, a prisoner confined at the Westville Correctional
Facility, submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his 2011 conviction in the Tippecanoe Superior Court for theft, for which he
was sentenced to two years and ten months imprisonment. 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 . . .”Id. This rule provides district courts with a
gatekeeping responsibility to sift through habeas corpus petitions and dismiss those
petitions which obviously lack merit.
Section 28 U.S.C. 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.” The exhaustion requirement is premised on
concerns of comity; the state courts must be given the first opportunity to address and
correct violations of their prisoners’ federal rights. O’Sullivan v. Boerckel, 526 U.S. 838, 846-
47 (1999); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). For that opportunity to be
meaningful, the petitioner must fairly present his constitutional claims in one complete
round of state review. Boerckel, 526 U.S. at 845. Failure to exhaust available state court
remedies constitutes a procedural default. 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. Id. at 844.
Luebcke concedes in his petition that he has not presented his claims to the Indiana
Supreme Court, or even to the Indiana Court of Appeals. He did not appeal his conviction
(DE 1 at 2), nor did he file a petition for post-conviction relief (Id. at 3). Accordingly, the
Petitioner has procedurally defaulted his claims.
A habeas petitioner can overcome a procedural default by showing both cause for
failing to abide by state procedural rules and a resulting prejudice from that failure.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008).
Cause sufficient to excuse procedural default is defined as “some objective factor external
to the defense” which prevented a petitioner from pursuing his constitutional claim in state
court. Murray v. Carrier, 477 U.S. 478, 492 (1986).
Luebcke states as the cause for his failure to exhaust that his attorney “rejected filing
any thing for me” and that “she withdrew her appearance” for him (DE 1 at 4). This,
however, is not a cause external to the defense, and would not have prevented Luebcke
from taking a pro se appeal or filing a pro se petition for post-conviction relief. Accordingly,
the court must dismiss this petition because it establishes on its face that the Petitioner has
2
not exhausted his state court remedies. The dismissal will be without prejudice to the
Petitioner’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.
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the court must
consider whether to grant Luebcke 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 adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). When the 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. Next, 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 is fully explained above, Luebcke has not exhausted his state court remedies as
to any of the claims he wishes to present to the Court. Luebcke also has not established
that jurists of reason would debate the correctness of this procedural ruling or find a reason
to encourage him to proceed further. Accordingly, the Court declines to issue Luebcke a
certificate of appealability.
3
For the reasons stated in this order, the court DISMISSES this petition for writ of
habeas corpus, without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Court, and DENIES the Petitioner a certificate of
appealability.
SO ORDERED on September 19, 2012
s/William C. Lee
William C. Lee, Judge
United States District Court
4
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?