Husband v. Superintendent

Filing 4

OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner Jamaal Husband. This case is DISMISSED pursuant to Section 2254 Habeas Corpus Rule 4. Petitioner is DENIED a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner is DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Clerk DIRECTED to enter judgment accordingly. Signed by Judge Robert L Miller, Jr on 9/18/17. (Copy mailed to pro se party). (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JAMAAL HUSBAND,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:17-cv-459-RLM-MGG

OPINION AND ORDER
Jamaal Husband, a pro se prisoner, filed a habeas corpus petition
attempting to challenge his guilty plea and 50-year sentence for voluntary
manslaughter by the St. Joseph Superior Court on October 7, 2003 in 71D03207-MR-13. ECF 1 at 1. Before a petitioner can challenge a State proceeding in
a federal habeas corpus petition, 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, 10251026 (7th Cir. 2004). Thus, this court may only review Mr. Husband’s conviction
if he has exhausted his State court remedies.
Mr. Husband concedes that he hasn’t filed a direct appeal or post-conviction
relief petition in state court. He therefore has not exhausted his State court
remedies. Moreover, he couldn’t cure this omission by returning to State court
because his limitations period to file in federal court has now expired. See 28

U.S.C. § 2244(d). Thus, Mr. Husband’s challenge to his conviction is procedurally
defaulted and must be denied.
Mr. Husband’s primary argument appears to be that the trial court erred in
refusing to modify his sentence. Like his challenge to his conviction, he has not
pursued this claim in state court. If Mr. Husband wishes to pursue a federal
habeas corpus petition regarding the length of his sentence, he must first
demonstrate that he has properly exhausted his State court remedies.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court
must consider whether to grant a certificate of appealability. When the 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, this
petition is procedurally defaulted. Because there is no basis for finding that jurists
of reason would debate the correctness of this procedural ruling, 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 these reasons, the court:

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(1) DISMISSES this case pursuant to Section 2254 Habeas Corpus
Rule 4;
(2) DENIES a certificate of appealability pursuant to Section 2254
Habeas Corpus Rule 11;
(3) DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C.
§ 1915(a)(3); and
(4) DIRECTS the clerk to enter judgment accordingly.
SO ORDERED on September 18, 2017.
/s/ Robert L. Miller, Jr.
Judge
United States District Court

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