Nichols v. Superintendent

Filing 10

OPINION AND ORDER: The Court DENIES the habeas corpus petition and DENIES a certificate of appealability. Signed by Judge Rudy Lozano on 4/15/2016. cc: Nichols (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DAMIONNE M. NICHOLS,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:15-CV-027

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus received from
Damionne M. Nichols, a pro se prisoner, on January 20, 2015. The
petition (DE 1) challenges his conviction for Possession of a
Firearm by a Serious Violent Felon and 16 year sentence

on

February 28, 2012, by the Allen Superior Court under cause number
02D06-1101-FB-11. For the reasons set forth below, the Court DENIES
the

habeas

corpus

petition

and

DENIES

a

certificate

of

appealability.

BACKGROUND
Following his conviction, Nichols filed a direct appeal with
the Court of Appeals of Indiana, but he did not petition for
transfer to the Indiana Supreme Court. DE 6-2. After his postconviction relief petition was denied, he filed a notice of appeal,
but he did not file an appellant’s brief. DE 6-6. As a result, his

appeal was dismissed by the Court of Appeals of Indiana and he did
not file a petition to transfer challenging that ruling.

DISCUSSION
The

respondent

argues

that

the

petition

is

procedurally

defaulted. “To avoid procedural default, a habeas petitioner must
fully and fairly present his federal claims to the state courts.”
Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006) (quotation
marks and citation omitted).
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.
Baldwin v. Reese, 541 U.S. 27 (2004); O’Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Picard v. Connor,
404 U.S. 270, 275 (1971). “Only if the state courts have
had the first opportunity to hear the claim sought to be
vindicated in the federal habeas proceeding does it make
sense to speak of the exhaustion of state remedies.” Id.
at 276. 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. Boerckel,
526 U.S. at 845. 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. Ibid.
Lewis

v.

Sternes,

390

F.3d

1019,

1025-1026

(7th

Cir.

2004)

(parallel citations omitted).
The State court records show that Nichols did not present any
of his grounds to the Indiana Supreme Court. Nichols does not
assert

that

he

did.

Rather

he

argues

that

his

“appeal

was

improperly disposed of due to a refusal of [the Court of Appeals of
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Indiana] to acknowledge their failure to timely notify Petitioner
of pertinent deadlines caused by their miscommunication.” DE 1 at
5. In sum, he is simply arguing that he did not know the procedural
rules which explained when he was required to file his brief.
However, “it is well established in this Circuit that circumstances
such as youth, lack of education, and illiteracy are not external
impediments within the context of excusing procedural default.”
Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). Indeed,
Harris went on to hold that neither mental retardation, mental
deficiencies,

nor

mental

illness

demonstrate

cause

to

excuse

procedural default. Therefore, Nichols’ ignorance of the law does
not excuse procedural default. Because his claims are procedurally
defaulted, this court cannot consider them.

CONCLUSION
For the reasons set forth above, the Court DENIES the habeas
corpus petition and DENIES a certificate of appealability.

DATED: April 15, 2016

/s/RUDY LOZANO, Judge
United State District Court

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