McKinney v. Superintendent
Filing
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OPINION AND ORDER GRANTING 4 MOTION to Dismiss filed by Superintendent; DENYING the habeas corpus petition. Signed by Chief Judge Philip P Simon on 11/8/2013. ***Civil Case Terminated (lyb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHAD McKINNEY,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 3:13-CV-677 PS
OPINION AND ORDER
This matter is before the court on the habeas corpus petition (DE 1) filed by Chad
McKinney, a pro se prisoner, challenging his prison disciplinary proceeding at the Indiana State
Prison on May 31, 2011, where he was found guilty of Possessing Unauthorized Property in
violation of B-215. The respondent filed a motion to dismiss (DE 4) and informed the petitioner
“in the spirit of Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), that he had . . . twenty-three
(23) days from the date on the certificate of service to file [his] reply with the Clerk.” DE 4 at 3.
This was incorrect. Pursuant to N.D. Ind. L.Cr.R. 47-2, he had 28 days – plus the 3 days for
mailing provided for by Federal Rule of Civil Procedure 6(d) – for a total of 31 days. Thus, the
deadline was October 7, 2013. Nevertheless, I have waited even longer for a response from the
petitioner and none has arrived.
The respondent argues that these claims are unexhausted because McKinney did not
appeal to the Final Reviewing Authority and has provided the administrative record which
proves that McKinney did not appeal beyond the Superintendent of the Indiana State Prison. In
Indiana, prison disciplinary cases cannot be appealed to the state courts, so “to exhaust a claim,
and thus preserve it for collateral review under § 2254, a prisoner must present that legal theory
to the . . . Final Reviewing Authority . . ..” Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir. 2002).
Here, because McKinney did not file an administrative appeal to the Final Reviewing Authority
and has not provided any explanation for not doing so, all of these claims are procedurally
defaulted. See Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004).
For the foregoing reasons, the motion to dismiss (DE 4) is GRANTED, and the habeas
corpus petition (DE 1) is DENIED.
SO ORDERED.
ENTERED: November 8, 2013.
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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