Maxie v. Superintendent

Filing 5

OPINION AND ORDER DISMISSING CASE without prejudice pursuant to Section 2254 Habeas Corpus Rule 4. Signed by Judge Robert L Miller, Jr on 12/10/12. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL A. MAXIE,
Petitioner,
v.
SUPERINTENDENT
Respondent.

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CAUSE NO. 3:12-CV-765 RM

OPINION AND ORDER
Michael A. Maxie, a pro se prisoner, filed a habeas corpus petition trying to challenge
his convictions for battery on a pregnant woman and interfering with the reporting of a
crime by the Elkhart Superior Court under cause number 20D01-0812-FC-102 on February
28, 2011. This petition must be dismissed because it is a mixed petition. “[F]ederal district
courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing
both exhausted and unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005).
Mr. Maxie presents three grounds for relief. In both Ground One and Ground Two,
Mr. Maxie argues that his attorney on direct appeal was ineffective. He says he presented
these two grounds to the Indiana Supreme Court during his direct appeal. Mr. Maxie
presents several claims in each ground and it is possible that he might have presented other
portions of these grounds during his direct appeal. It is not possible, though, that he
properly presented an ineffective assistance of appellate counsel claim during his direct
appeal. Such a claim can only be raised during a post-conviction relief proceeding. Mr.
Maxie filed a post-conviction relief petition in the state trial court on April 27, 2012, and it

is still pending in that court. As such, the claims he has raised in his post-conviction
petition are not yet exhausted and this court can’t adjudicate this mixed habeas corpus
petition.
This petition must be dismissed, unless dismissal would prevent federal habeas
review. Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006). The Indiana Supreme Court
denied transfer of Mr. Maxie’s direct appeal on February 29, 2012, so the one-year statute
of limitation began on May 30, 2012, when the time for filing a petition for certiorari
expired. 28 U.S.C. § 2244(d)(1)(A). The statute of limitations was tolled when Mr. Maxie
filed his post-conviction relief petition on April 27, 2012. 28 U.S.C. § 2244(d)(2). Therefore,
the entire one-year period still remains; Mr. Maxie hasn’t yet lost a single day. The statute
of limitation won’t start again until the conclusion of the post-conviction proceeding and
appeals. Dismissing this petition won’t deprive him of the opportunity for federal habeas
review and a stay would not be appropriate in this case.
For the foregoing reasons, the petition is DISMISSED WITHOUT PREJUDICE
pursuant to SECTION 2254 HABEAS CORPUS RULE 4.
SO ORDERED.
ENTERED: December 10 , 2012
/s/ Robert L. Miller, Jr.
Judge
United State District Court