Callahan v. Sheriff

Filing 4

OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner Johnathon Lee Callahan. This case is DISMISSED WITHOUT PREJUDICE pursuant to Section 2254 Habeas Corpus Rule 4 because the claims are unexhausted. Petitioner DENIED a cer tificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge Joseph S Van Bokkelen on 3/28/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHNATHON LEE CALLAHAN,
Petitioner,
v.

Case No. 3:17-CV-128 JVB

SHERIFF,
Respondent.
OPINION AND ORDER
Johnathon Lee Callahan, a pro se prisoner, filed a habeas corpus petition attempting to
challenge his guilty plea for Resisting Arrest and two-year sentence by the Elkhart Superior
Court on October 10, 2016, under cause number 20D03-1511-F6-1082. However, before a
federal district court may grant habeas corpus relief, the petitioner must have exhausted his
claims in 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, 1025–26 (7th Cir. 2004).
Here, Callahan has not properly presented any claims to the Indiana Supreme Court. He
did not file a direct appeal and he has not filed a post-conviction relief petition. Callahan argues
he should not have to appeal because the elected prosecutor at the time he was convicted is now
the Indiana Attorney General. He argues this is a conflict of interest. It is not. The Attorney
General, whoever it is, must represent the State of Indiana and work to have the convictions from
every county upheld on appeal. Therefore all of Callahan’s claims are unexhausted and this
habeas corpus petition must be dismissed without prejudice so that he can pursue them in the
State courts.

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).
Here, Callahan was sentenced on October 10, 2016. The time for filing a direct appeal expired on
November 9, 2016. See Indiana Rules of Appellate Procedure 9.A.(1). Therefore the one-year
period of limitation for filing a habeas corpus petition will not expire until at least November 9,
2017. See 28 U.S.C. § 2254(d)(1)(A). However, when he files a post-conviction relief petition
challenging this conviction in State court, that will stop the one-year clock. Because he has more
than seven months left to do so, dismissing this petition will not effectively end his chance at
habeas corpus review and a stay would not be appropriate. See 28 U.S.C. § 2254(d)(2).
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
appealability when a court dismisses a petition on procedural grounds, the petitioner must show
that reasonable jurists would find it debatable (1) whether the court was correct in its procedural
ruling and (2) whether the petition states a valid claim for denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Here, there is no basis for finding that jurists of reason
would debate the correctness of this procedural ruling. Therefore there is no basis for
encouraging him to proceed further in federal court until he has exhausted his claims in State
court. Thus, a certificate of appealability must be denied. For the same reasons, he may not
appeal in forma pauperis because an appeal could not be taken in good faith.
For the foregoing reasons the Court DISMISSES this case WITHOUT PREJUDICE
pursuant to Section 2254 Habeas Corpus Rule 4 because the claims are unexhausted and
DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11.

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Johnathon Lee Callahan is DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. §
1915(a)(3).
SO ORDERED on March 28, 2017.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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