Pangallo v. Superintendent

Filing 6

OPINION AND ORDER re 4 Petition for Writ of Habeas Corpus. The petition (DE 4) is DISMISSED WITHOUT PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES. ***Civil Case Terminated. Signed by Judge Joseph S Van Bokkelen on 7/1/2014. (rmc)

United States District Court
Northern District of Indiana
FRANK D. PANGALLO,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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Civil Action No. 3:14-CV-1600 JVB

OPINION AND ORDER
Frank D. Pangallo, a pro se prisoner, filed an amended petition under 28 U.S.C. § 2254
challenging his 2013 theft and habitual offender convictions in St. Joseph County. (DE 4.)
Pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, the court is obligated to
review the petition and dismiss it if “it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief . . . .”
According to the petition, Pangallo pled guilty to felony theft and habitual offender
adjudication in St. Joseph County Superior Court. (DE 4 at 2.) On May 24, 2013, he was
sentenced to seven years in prison. (Id.) He did not pursue a direct appeal. (Id.) He has filed
various documents in the state trial court seeking to withdraw his guilty plea, but he has not yet
pursued a state post-conviction petition, nor has he filed any appeals to the Indiana Court of
Appeals or Indiana Supreme Court. (Id. at 1-2, 12-15.)
In May 2014, he sought federal habeas relief. (DE 1.) After his original petition was
stricken, he filed an amended petition. (DE 4.) Giving his amended petition liberal construction,
he argues that his sentence was excessive and that he received ineffective assistance of counsel
in connection with his guilty plea. (DE 4 at 2-6.) He acknowledges that he has not yet presented
these claims to the Indiana Supreme Court. (Id.)

Pangallo’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 district
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 of a habeas petition,
however, the court must ensure that the petitioner has exhausted all available remedies in state
court. 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, Pangallo
acknowledges that he has not yet presented his claims in one complete round of state review. It is
apparent that he has an available remedy through the state post-conviction review process that he
has not yet pursued. See IND. POST-CONV. R. 1 et seq. Until Pangallo exhausts all available state
court remedies, federal habeas relief is unavailable. Accordingly, the petition will be dismissed

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without prejudice.1 The dismissal will be without prejudice to his right to file a new petition after
he exhausts all available state court remedies.
For these reasons, the petition (DE 4) is DISMISSED WITHOUT PREJUDICE
pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES.

SO ORDERED on July 1, 2014.

S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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The court should consider staying rather than dismissing a habeas petition containing unexhausted claims
when the statute of limitations has run or is close to running, such that dismissal “would effectively end any chance
at federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (2006). Here, the record reflects that Pangallo had
various filings pending in state court challenging his guilty plea until January 2014. The federal deadline would have
been tolled during this period. 28 U.S.C. § 2244(d)(2). The deadline will also be tolled while Pangallo seeks state
post-conviction relief. If he acts diligently, he should have sufficient time to exhaust his state court remedies and
return to federal court within the one-year deadline.

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