Tolliver v. Superintendent
Filing
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OPINION AND ORDER: The Court DISMISSES the petition 1 pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and DENIES the petitioner a certificate of appealability. The Clerk is DIRECTED to send Tolliver a blank AO-241 (Rev. 10/07 (INND Rev. 6/13) form and a blank prisoner in forma pauperis petition. Signed by Judge Rudy Lozano on 8/14/2015. (lhc)(cc: Forms to Tolliver)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN JAMES TOLLIVER,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 3:15-CV-323
OPINION AND ORDER
This matter is before the Court on a 28 U.S.C. § 2254 Habeas
Corpus Petition by a Person in State Custody, filed by Petitioner,
Kevin James Tolliver, a pro se prisoner, on July 27, 2015. (DE #1.)
For the reasons set forth below, the Court DISMISSES the petition
(DE #1) pursuant to RULE 4
OF THE
RULES GOVERNING SECTION 2254 CASES, and
DENIES the petitioner a certificate of appealability. The Clerk is
DIRECTED to send Tolliver a blank AO-241 (Rev. 10/07 (INND Rev.
6/13) form and a blank prisoner in forma pauperis petition.
BACKGROUND
Petitioner, Kevin James Tolliver, a prisoner confined at the
Indiana State Prison, filed this habeas corpus petition challenging
his juvenile conviction and sentence handed down by the Elkhart
Circuit Court, Juvenile Division on August 1, 1996, in cause number
20C01-9606-JD-00380.
In
that
case
he
plead
guilty
to
child
molesting.
DISCUSSION
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[.]” RULE 4
OF THE
RULES
GOVERNING SECTION 2254 CASES. “The first showing a § 2254 petitioner
must make is that he is ‘in custody pursuant to the judgment of a
State court.’ 28 U.S.C. § 2254(a).” Lackawanna County Dist. Atty.
v. Coss, 532 U.S. 394, 401 (2001).
The Supreme Court has interpreted the “in custody”
language as requiring that the habeas petitioner be “in
custody” under the conviction or sentence under attack at
the time his petition is filed.
Martin v. Deuth, 298 F.3d 669, 671 (7th Cir. 2002) (quotation marks
and citation omitted). Tolliver does not argue that he “is in
custody”
pursuant
to
that
1996
conviction.
Notably,
in
his
petition, he claims to have been sentenced to juvenile detention as
a result of that conviction. (DE 1.) Thus, it is not plausible to
find that he is currently incarcerated at ISP for his 1996 juvenile
conviction.
Tolliver claims his 1996 conviction “could later be used as an
aggravating circumstance in later adult criminal sentencing.”
(DE
1 at 4.) While possible, it is not clear if his current sentence
has
been
enhanced
due
to
his
juvenile
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conviction.
Though
a
plausible interpretation of the claim he is trying to present in
this case, such a claim is not actionable.
In Maleng v. Cook [490 U.S. 488 (1989) (per curium)], we
considered a situation quite similar to the one presented
here. In that case, the respondent had filed a § 2254
petition listing as the “conviction under attack” a 1958
state conviction for which he had already served the
entirety of his sentence. He also alleged that the 1958
conviction had been used illegally to enhance his 1978
state sentences . . ..
We held that the respondent was not “in custody” on
his 1958 conviction merely because that conviction had
been used to enhance a subsequent sentence. We
acknowledged, however, that because his § 2254 petition
could be read as asserting a challenge to the 1978
sentences, as enhanced by the allegedly invalid prior
conviction, respondent satisfied the “in custody”
requirement for federal habeas jurisdiction.
Similarly, Coss is no longer serving the sentences
imposed pursuant to his 1986 convictions, and therefore
cannot bring a federal habeas petition directed solely at
those convictions. Coss is, however, currently serving
the sentence for his 1990 conviction. Like the respondent
in Maleng, Coss' § 2254 petition can be (and has been)
construed as asserting a challenge to the 1990 sentence,
as enhanced by the allegedly invalid prior 1986
conviction.
Lackawanna County, 532 U.S. at 401-402.
Here, the sentence for the 1996 molestation conviction is
over. So even if it resulted in extending his release date for his
current
conviction,
he
is
still
not
in
custody
on
the
1996
molestation conviction and therefore cannot challenge it.
Unlike the petitions in Maleng and Coss, this petition cannot
be construed as a challenge to his current conviction. Most
notably, Tolliver has not provided any information on what his
current conviction is or whether it has been impacted by his
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juvenile conviction. The clerk will send him a habeas petition in
the
event
he
wants
to
challenge
his
current
conviction
and
sentence.
Pursuant to RULE 11
OF THE
RULES GOVERNING SECTION 2254 CASES, the
Court must either issue or deny a certificate of appealability in
all cases where it enters a final order adverse to the petitioner.
To obtain a certificate of appealability under 28 U.S.C. § 2253©,
the petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented
were
adequate
to
deserve
encouragement
to
proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quote marks and citation omitted). As is explained above, Tolliver
is barred from challenging his fully executed 1996 conviction. Even
if he could overcome this barrier, his petition was not timely
filed. Nothing before the Court suggests that jurists of reason
could debate the correctness of this ruling or find a reason to
encourage Tolliver to proceed further. Accordingly, the Court
declines to issue him a certificate of appealability.
CONCLUSION
For the reasons set forth above, the Court DISMISSES the
petition (DE #1) pursuant to RULE 4
4
OF THE
RULES GOVERNING SECTION 2254
CASES, and DENIES the petitioner a certificate of appealability. The
Clerk is DIRECTED to send Tolliver a blank AO-241 (Rev. 10/07 (INND
Rev. 6/13) form and a blank prisoner in forma pauperis petition.
DATED: August 14, 2015
/s/RUDY LOZANO, Judge
United States District Court
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