Morrow v. Superintendent

Filing 11

OPINION AND ORDER DISMISSING CASE WITHOUT PREJUDICE for failure to exhaust state court remedies. Signed by Chief Judge Philip P Simon on 2/25/14. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ERIC D. MORROW,

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Petitioner,
vs.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:13-CV-520 PS

OPINION AND ORDER
Eric D. Morrow, a pro se prisoner, filed an amended petition under 28 U.S.C. § 2254
challenging his 2012 conviction in Tippecanoe County for identity deception. (DE 3.) The
respondent moves to dismiss the petition without prejudice because Morrow has not yet
exhausted his claims in state court. (DE 10.)
In April 2012, Morrow was charged with identity deception after he used someone else’s
personal information to open a credit account. (DE 10-2 at 1-15.) He was also charged with
being a habitual offender based on prior theft and forgery convictions. (DE 10-2 at 2.) In August
2012, he pled guilty to the charges. (DE 10-3 at 1-2.) On September 26, 2012, he was sentenced
in accordance with the plea agreement to three years in prison and two years of supervised
release. (DE 10-3 at 1; DE 10-1 at 2-3.) On May 7, 2013, he sought leave in the trial court to file
a belated appeal. (DE 10-1 at 4.) His motion was denied. (Id.) He did not seek further relief in
the Indiana Court of Appeals or Indiana Supreme Court in connection with this request. (Id.) He
also has not yet pursued state post-conviction relief. (See id.)
On May 31, 2013, Morrow filed the present petition. (DE 3.) The petition is not a model
of clarity, but giving it liberal construction he alleges two claims: (1) his trial counsel was

ineffective in failing to investigate his past mental health problems and various family issues,
which could have been presented as mitigating evidence at sentencing; and (2) his rights were
violated because he wanted a different appointed counsel to represent him at sentencing. (DE 3
at 5-6.)
Morrow’s petition is governed by the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a federal
court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court
judgment “on the ground that he is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). Before considering the merits, however, I must
ensure that the petitioner has exhausted all available remedies in the state courts. 28 U.S.C.
§ 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). As the U.S. Court of
Appeals for the Seventh Circuit has explained:
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. . . . 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. 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, 390 F.3d at 1025-26 (internal citations and quotation marks omitted).
Here, as the respondent points out, Morrow has not yet presented either of his claims in
one complete round of state review. His request to file a belated appeal was denied in the trial
court, and he did not seek further review in the Indiana Court of Appeals or the Indiana Supreme
Court. He also has not pursued state post-conviction relief, which is available to him to develop
his claims of ineffective assistance of counsel. See IND. POST-CONVICT. R. 1 et seq. Until he
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exhausts his state court remedies, he cannot obtain federal habeas relief. Lewis, 390 F.3d at 1026.
Accordingly, the petition is subject to dismissal.
I should consider staying rather than dismissing a petition containing unexhausted claims
when the one-year statute of limitations under AEDPA has expired, such that “dismissal would
effectively end any chance at federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th
Cir. 2006). However, a stay is permitted in only “limited circumstances,” since if it were
employed too frequently the purposes of AEDPA would be undermined. Rhines v. Weber, 544
U.S. 269, 277 (2005). A stay “frustrates AEDPA’s objective of encouraging finality by allowing
a petitioner to delay the resolution of the federal proceedings,” and undermines AEDPA’s goal
of “streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all
his claims in state court prior to filing his federal petition.” Id. In other words, a stay “effectively
excuses a petitioner’s failure to present his claims first to the state courts,” and is thus warranted
only when the petitioner can establish good cause for his failure to exhaust his claims in state
court before seeking federal habeas relief. Id.
Here, Morrow has not requested a stay or otherwise responded to the state’s exhaustion
argument.1 He does not offer any reason, let alone a good one, for failing to present his claims to
the state courts before proceeding to federal court. Instead, he asks me to “override all courts”

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Morrow’s conviction would have become final when the time for pursuing a direct appeal expired after
sentencing. See Gonzalez v. Thaler, —U.S.—, 132 S. Ct. 641, 653-54 (2012). However, if he is successful in obtaining
leave to file a belated appeal, his conviction would not become final for purposes of 28 U.S.C. § 2244(d)(1)(A) until the
belated appeal proceedings are concluded. Jimenez v. Quarterman, 555 U.S. 113 (2009). Additionally, during the past
year Morrow has filed several motions in the state trial court challenging his sentence. (DE 10-1 at 3-4.) The federal
deadline would be tolled while a properly filed motion for state collateral review was pending. 28 U.S.C. § 2244(d)(2);
see also Carter v. Litscher, 275 F.3d 663 (7th Cir. 2001) (giving broad reading to Section 2244(d)(2) to include any state
filing challenging a conviction or sentence, even those based on state law). Based on the current record, it does not
appear Morrow would be precluded from returning to federal court after exhausting his state court remedies, assuming
he acts diligently.

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and allow him to proceed immediately with federal habeas relief, apparently because he feels the
state courts are likely to deny his claims. (DE 3 at 10.) This is not a proper reason to dispense
with the exhaustion requirement. See 28 U.S.C. § 2254(b)(1)(A); see also Rhines, 544 U.S. at
274 (“[I]t would be unseemly in our dual system of government for a federal district court to
upset a state court conviction without an opportunity to the state courts to correct a constitutional
violation.”). Therefore, the petition will be dismissed, but the dismissal will be without prejudice
to Morrow’s right to file a new petition after he exhausts his state court remedies.
For these reasons, the petition (DE 3) is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
ENTERED: February 25, 2014.
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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