Harris v. Sheriff

Filing 6

OPINION AND ORDER: The petition [DE 4] is DENIED WITHOUT PREJUDICE and the petitioner is DENIED a certificate of appealability. Signed by Chief Judge Philip P Simon on 11/19/2015. (cc: Harris)(rmn) Modified on 11/19/2015 (rmn).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBERT L. HARRIS,
Petitioner,
vs.
SHERIFF,
Respondent.

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CAUSE NO. 3:15-CV-504-PPS

OPINION AND ORDER
Robert L. Harris, a pro se prisoner, filed a habeas petition attempting to challenge a
pending State criminal proceeding in the St. Joseph Superior Court under cause number 71D031503-F6-167. Because he has not yet been convicted, he is attempting to avoid being prosecuted.
“Ordinarily the attempt of a state prisoner to obtain federal habeas corpus relief in advance of his
state criminal trial [is] completely hopeless.” United States ex rel. Stevens v. Circuit Court of
Milwaukee County, 675 F.2d 946, 947 (7th Cir. 1982). This is one of those ordinary cases.
Though the Seventh Circuit in Stevens provided for a narrow exception to entertain some double
jeopardy claims, this case does not present a double jeopardy claim. Here, Harris argues that he
is innocent because he is not the person that authorities were looking for. This is a question to be
resolved in the first instance by the State trial court – not this Court. Thus, to the extent that
Harris believes that he has a viable defense to the charges against him or that his case is not
being properly adjudicated, he needs to first present those claims to the State courts – at trial, on
appeal, and ultimately to the Indiana Supreme Court. See Lewis v. Sternes, 390 F.3d 1019,
1025-1026 (7th Cir. 2004). Therefore this petition will be dismissed without prejudice. If Harris

is convicted, then after he has presented his claims to the Indiana Supreme Court, he may return
to this Court and file another habeas corpus petition challenging the conviction.
Finally, 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, 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 explained, Harris has not yet been convicted and federal habeas corpus is not the
proper means of asserting his defenses to the charges he is facing in State court. Nothing before
me suggests that jurists of reason could debate the correctness of this procedural ruling or find a
reason to encourage this case to proceed further. Accordingly, I decline to issue a certificate of
appealability.
For the foregoing reasons, the petition [DE 4 is DENIED WITHOUT PREJUDICE
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and the petitioner is DENIED a certificate of appealability.
SO ORDERED.
ENTERED: November 19, 2015
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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