Davis v. Superintendent

Filing 6

OPINION AND ORDER: 1 Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and the petitioner is DENIED a certificate of appealability. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 3/21/2017. (Copy mailed to pro se party)(nae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SONNY M. DAVIS,

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)
)
)
)
)
)
)
)

Petitioner,
vs.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:17-CV-169 RL

OPINION AND ORDER
Sonny M. Davis, a pro se prisoner, filed a habeas corpus
petition challenging his conviction in Marion Superior Court. (DE
1.)

Pursuant to RULE 4

OF THE

RULES GOVERNING SECTION 2254 CASES, 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[.]” For the reasons stated
below, 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.1
Following a trial, Davis was convicted of burglary, robbery,
aggravated
criminal

battery,

criminal

recklessness.

(DE

4

confinement,
at

1.)

He

aggregate prison term of 50 years. (Id.)

intimidation,

was

sentenced

to

and
an

He appealed, but the

Indiana Court of Appeals affirmed in all respects. Davis then
1

Davis recently filed a motion (DE 5) requesting that a certified copy
of the state court docket be sent here. However, that request is unnecessary
as this case is being dismissed without prejudice.

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sought transfer with the Indiana Supreme Court. However, that, too,
was denied. On November 15, 2004, Davis filed a petition for postconviction relief in the state trial court. (Id. at 2.) At present,
the petition remains pending. (Id.)
In February 2017, Davis filed a federal habeas petition
challenging his conviction. He acknowledges that his state postconviction petition remains pending, but argues that the Court
should waive the exhaustion requirement in his case. (Id. at 3, 5.)
Davis’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 district 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, the
Court must ensure that the petitioner exhausted all available
remedies in state court. 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 . . . 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

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system, including levels at which review is discretionary
rather than mandatory.
Lewis, 390 F.3d at 1025-26 (internal citations and quotation marks
omitted). Until exhaustion has occurred, federal habeas relief is
unavailable. Id.
Here, Davis acknowledges that he has not yet exhausted his
state court remedies, but again argues that he should be excused
from the exhaustion requirement. In rare instances, federal courts
may dispense with the exhaustion requirement because excessive
delay on the part of the state has led to injustice to the
petitioner. Granberry v. Greer, 481 U.S. 129, 135-36 (1987);
Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997). To qualify
for this exception, the delay must be both “inordinate” and
“unjustifiable.” Jackson, 112 F.3d at 881. Thus, where a petition
for post-conviction relief had “lain dormant” for more than three
years, the Seventh Circuit found grounds to excuse the exhaustion
requirement, unless the state could show that the delay was
justified. Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981); see
also Jackson, 112 F.3d at 878-79 (stating in dicta that state’s
failure to take any action on post-conviction petition for more
than five years could provide grounds for excusing the exhaustion
requirement); See also Sceifers v. Trigg, 46 F.3d 701, 703-704 (7th
Cir. 1995) (Holding that an eleven year delay caused by the
petitioner and his counsel did not justify excusing the need to
first exhaust claims in state court.)
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Davis’s case does not fall into this exceptional category.
Even though he filed his post-conviction petition more than 12
years ago, which is an inordinate delay, there is no indication
that this delay was unjustifiable or that his post-conviction
petition has laid dormant. Upon careful review of the thirty page
state court online docket, it is clear that the twelve year period
has been very active and most of the delay is attributable to
Davis.

https://public.courts.in.gov/mycase#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6

Ik1HUXpORE15TnpFeE1qTXdPakEwT0RnME1UWXhaVEk9In19 (last visited on
March 20, 2017). Indeed, Davis has sought and received more than
twenty (20) continuances since filing his post-conviction petition.
He has also amended his post-conviction petition twice, most
recently in March 2016. In that time, the court has been quite
busy, ruling on various motions and entering numerous orders. Davis
has also sought various forms of relief in the state appellate
courts, and those requests were ruled on as well. Although Davis
would obviously prefer that the case move more quickly, the record
reveals that this case has taken an inordinate amount of time due
to Davis’s own actions; not because of any unjustifiable delay or
injustice that would excuse his failure to exhaust.
Therefore, Davis’s petition is subject to dismissal. The Court
should consider staying rather than dismissing a habeas petition
containing unexhausted claims when it would be too late for the
petitioner to return to federal court, such that a dismissal would
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“effectively end any chance at federal habeas review.” Dolis v.
Chambers, 454 F.3d 721, 725 (2006). Here, the Indiana Supreme Court
denied transfer on March 8, 2004. Therefore the 1-year statute of
limitation began on June 8, 2004, when the time for filing a
petition

for

certiorari

expired.

28

U.S.C.

§

2244(d)(1)(A).

However, it was then tolled on November 15, 2004, when the postconviction petition was filed. 28 U.S.C. § 2244(d)(2). Because the
statute of limitation will not re-start until the conclusion of the
post-conviction proceeding and appeals, a stay is not necessary in
this case. Here Davis will have nearly seven (7) months to file a
habeas corpus petition after the end of his state post-conviction
case. Therefore a stay is not warranted since he has sufficient
time

to

return

proceedings

have

to

federal

concluded.

court

once

Accordingly

the
the

post-conviction

petition

will

be

dismissed, but the dismissal will be without prejudice to Davis’s
right to pursue federal habeas relief after he has exhausted all
available 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 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

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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, Davis 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

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to encourage Davis 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.
DATED: March 21, 2017

/s/RUDY LOZANO, Judge
United States District Court

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