Hines v. Superintendent

Filing 4

OPINION AND ORDER: The court DISMISSES this case WITHOUT PREJUDICE pursuant to Section 2254 Habeas Corpus Rule 4 because the claim is unexhausted and DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. ***Civil Case Terminated. Signed by Chief Judge Philip P Simon on 10/1/2014. (rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK HINES,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:14-CV-1798 PS

OPINION AND ORDER
Mark Hines, a pro se prisoner, filed a habeas corpus petition attempting to
challenge the revocation of his parole on July 30, 2014. However, before I can consider a
habeas corpus petition challenging a State proceeding, the petitioner must have
previously presented his claims to the State courts. “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 v. Sternes, 390 F.3d 1019,
1025-1026 (7th Cir. 2004).
There are two possible methods for challenging a parole revocation in Indiana:
by filing a post-conviction relief petition, Receveur v. Buss, 919 N.E.2d 1235, 1237 (Ind.
Ct. App. 2010), or by filing a State habeas corpus petition if the inmate is seeking
immediate release. Lawson v. State, 845 N.E.2d 185, 186 (Ind. Ct. App. 2006).
Furthermore, if a state habeas corpus petition is improperly filed, it will be converted to
a post-conviction petition. Hardley v. State, 893 N.E.2d 740, 743 (Ind. Ct. App. 2008) and
Ward v. Ind. Parole Bd., 805 N.E.2d 893 (2004). Here, Hines’ habeas corpus petition

indicates that he has not yet completed the State appellate process. (DE 2 at 1.)
Therefore, he has not exhausted his State court remedies and this case must be
dismissed without prejudice so that he can exhaust these claims in the State courts. If,
after he has ultimately presented his claims to the Indiana Supreme Court, he has not
yet obtained relief, then he may return to federal court and file a new habeas corpus
petition.
Pursuant to Section 2254 Habeas Corpus Rule 11, I must consider whether to
grant or deny a certificate of appealability. To obtain a certificate of appealability when
the court dismisses a petition on procedural grounds, the petitioner must show that
reasonable jurists would find it debatable (1) whether the court was correct in its
procedural ruling and (2) whether the petition states a valid claim for denial of a
constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). As previously explained,
the claims presented by Hines are unexhausted. Because there is no basis for finding
that jurists of reason would debate the correctness of this procedural ruling or find a
reason to encourage him to proceed further, a certificate of appealability must be
denied.
For the foregoing reasons the court DISMISSES this case WITHOUT
PREJUDICE pursuant to Section 2254 Habeas Corpus Rule 4 because the claim is
unexhausted and DENIES a certificate of appealability pursuant to Section 2254 Habeas
Corpus Rule 11.
SO ORDERED.
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ENTERED: October 1, 2014
s/Philip P. Simon
Chief Judge
United States District Court

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