Wilson v. Superintendent

Filing 10

OPINION AND ORDER: Court DISMISSES the amended habeas corpus petition 9 pursuant to Section 2254 Habeas Corpus Rule 4 because the claims are unexhausted; DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge Philip P Simon on 12/4/2017. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CARLTON P. WILSON,
Petitioner,
v.
WARDEN,
Respondent.

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CAUSE NO. 3:17-CV-634-PPS-MGG

OPINION AND ORDER
Carlton P. Wilson, a prisoner without a lawyer, filed an amended habeas petition
challenging his guilty plea and 20 year sentence for arson in 71D08-1102-FB-17 by the St.
Joseph Superior Court on January 17, 2017. ECF 9. However, before I can consider the
merits of a habeas petition, the petitioner must have 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).
Here, Wilson acknowledges that he has not presented his claims to the Indiana
Supreme Court. Indeed, he has not raised them in the State courts at any level. He
explains that he was unable to do so because he did not have access to the law library in
the St. Joseph County Jail. However, Wilson is now in the Westville Correctional
Facility. His lack of access to the jail library in the past did not prevent him from filing
this habeas corpus petition. Neither does his previous lack of access to the jail library
prevent him from filing a post-conviction relief petition in the State courts now.
Accordingly, this habeas petition must be dismissed without prejudice. If necessary,

after he has exhausted his available state court remedies, he can 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). Here, Wilson pleaded guilty on January 17, 2017. Though he did
not pursue a direct appeal, he had until February 16, 2017 to do so. Therefore, pursuant
to 28 U.S.C. 2244(d)(1)(A), his one-year limitations period to file a federal habeas corpus
petition began the next day. See Indiana Rule of Appellate Procedure 9(A)(1). The oneyear limitations period will not expire until February 20, 2018. See Federal Rule of Civil
Procedure 6(a)(1)(C) and 6(a)(6)(A). However, when he files a post-conviction relief
petition presenting his claims to the Indiana courts, the period of limitation will be
tolled pursuant to 28 U.S.C. 2244(d)(2). Therefore, dismissing this petition will not
effectively end his chance at habeas corpus review because he will have ample time to
return to this court after he exhausts his claims in State court. Thus, in this case, a stay
would not be appropriate.
Finally, 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 the 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
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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 Wilson 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 these reasons, the Court:
(1) DISMISSES the amended habeas corpus petition (ECF 9) pursuant to Section
2254 Habeas Corpus Rule 4 because the claims are unexhausted;
(2) DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus
Rule 11; and
(3) DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3).
SO ORDERED.
ENTERED: December 4, 2017.
_/ Philip P. Simon____________________
Judge
United States District Court

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