Peavy v. Superintendent
Filing
2
OPINION AND ORDER: The petition 1 is DENIED WITHOUT PREJUDICE, and the petitioner is DENIED a certificate of appealability. Signed by Judge Rudy Lozano on 10/25/2016. (lhc)(cc: Peavy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
)
)
)
)
)
)
)
)
)
WILLIE R PEAVY,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
CAUSE NO. 3:16-CV-00724
OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 filed by Willie R. Peavy, a pro se prisoner,
on October 19, 2016. For the reasons set forth below, the petition
(DE 1) is DENIED WITHOUT PREJUDICE, and the petitioner is DENIED
a certificate of appealability.
DISCUSSION
Willie R. Peavy, a pro se prisoner, filed a habeas corpus
petition attempting to challenge his conviction and sentence by
the Elkhart Superior Court on February 13, 2012. However, before
a petitioner can challenge a State proceeding, he 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).
Here, Peavy is in the process of presenting his claims to the
Elkhart Superior Court in his post-conviction relief petition.
There is no indication that he has yet presented any claims to the
Indiana Supreme Court. Because he has not exhausted his State court
remedies, this habeas corpus petition must be dismissed without
prejudice.
Finally, pursuant to Rule 11 of the Rules Governing Section
2254 Cases, the Court must consider whether to grant a certificate
of appealability. When a court dismisses a petition on procedural
grounds,
the
determination
of
whether
a
certificate
of
appealability should issue has two components. Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). First, the petitioner must show that
reasonable jurists would find it debatable whether the court was
correct in its procedural ruling. Id. at 484. If the petitioner
meets that requirement, then he must show that reasonable jurists
would find it debatable whether the petition states a valid claim
for the denial of a constitutional right.
Id.
As previously
explained, Peavy’s claims are unexhausted because he has not yet
presented them to the Indiana Supreme Court. 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
2
him to proceed further, a certificate of appealability must be
denied.
CONCLUSION
For the reasons set forth above, the petition (DE 1) is DENIED
WITHOUT PREJUDICE, and the petitioner is DENIED a certificate of
appealability.
DATED: October 25, 2016
/s/RUDY LOZANO, Judge
United States District Court
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?