Swindeman v. Sheriff
Filing
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OPINION AND ORDER: DISMISSING CASE WITHOUT PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and the petitioner is DENIED a certificate of appealability. Signed by Judge Joseph S Van Bokkelen on 12/10/2015. (lhc)(cc: Swindeman)
United States District Court
Northern District of Indiana
TROY LEWIS SWINDEMAN,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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Civil Action No. 3:15-CV-562 JVB
OPINION AND ORDER
Troy Lewis Swindeman, a pro se prisoner, filed a habeas corpus petition under 28 U.S.C.
§ 2254 challenging his October 16, 2015, conviction for driving on a suspended license in
Elkhart County. (DE 1.) 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.
According to the petition, Swindeman pled guilty to driving with a suspended license. He
has not pursued a direct appeal to the Indiana Court of Appeals or sought transfer to the Indiana
Supreme Court. Nor has he pursued a state post-conviction petition. Nevertheless, he seeks
habeas relief here.
Swindeman’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 federal
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 the
state courts. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004).
As 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). Simply put,
Swindeman must appeal his conviction through the Indiana Court of Appeals and then ask the
Indiana Supreme Court to take the case. This he has not done. Clearly, and by his own
admission, Swindeman has not presented any of his claims to the Indiana Supreme Court, as
required. Therefore he has not exhausted his State court remedies and this habeas corpus petition
must be dismissed without prejudice. If, after he has ultimately presented his claims to the
Indiana Supreme Court, he has not yet obtained relief, then he may return to this court and file a
new habeas corpus petition.
When dismissing a habeas corpus petition because it is unexhausted, “[a] district court [is
required] to consider whether a stay is appropriate [because] the dismissal would effectively end
any chance at federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006).
Since Swindeman was convicted in October 2015, only days of the 1-year period of limitation
set forth in 28 U.S.C. § 2244(d) have expired. Thus, the dismissal of this petition will not end his
chance of federal review after he exhausts his State court remedies.
As a final matter, pursuant to Section 2254 Habeas Corpus Rule 11, the court must
consider whether to grant or deny a certificate of appealability. To obtain a certificate of
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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). When the court dismisses the petitioner’s
claim on procedural grounds, the determination of whether a certificate of appealability should
issue has two components. Id. at 484–85. First, the petitioner must show that reasonable jurists
would find it debatable whether the district court was correct in its procedural ruling. Id. at 484.
Next, the petitioner must show that reasonable jurists would find it debatable whether the
petition states a valid claim for the denial of a constitutional right. Id. Each is a threshold
inquiry; thus, only one component needs to be addressed if it will resolve the issue. Id. at 485.
As explained above, Swindeman has not yet exhausted his state court remedies, and so
his petition must be dismissed. A dismissal without prejudice for failure to exhaust state court
remedies is not an appealable order, unless the petitioner would be time-barred or otherwise
precluded from returning to federal court after exhausting his state court remedies. Dolis, 454
F.3d at 723; Moore v. Mote, 368 F.3d 754 (7th Cir. 2004). That issue is not presented here, and
so the dismissal order would not be appealable. Moreover, nothing before the court suggests that
jurists of reason could debate the correctness of this procedural ruling or find a reason to
encourage Swindeman to proceed further without first exhausting his state court remedies.
For these reasons, the petition (DE 1) is DISMISSED WITHOUT PREJUDICE
pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and the petitioner is
DENIED a certificate of appealability.
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SO ORDERED on December 10, 2015.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division
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