Brown v. Superintendent

Filing 2

OPINION AND ORDER: Brad Brown's petition 1 is DISMISSED pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES because the claims are unexhausted; Brad Brown is DENIED a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and Brad Brown is DENIED leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge Philip P Simon on 10/17/2017. (Copy mailed to pro se party) (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRAD S. BROWN,

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:17CV708-PPS/MGG

OPINION AND ORDER
Brad Brown, a state prisoner, filed a habeas petition challenging his convictions
and 12-year sentence for domestic battery and robbery resulting in bodily injury. ECF 1.
Before considering the merits I need to ensure that the Brown has 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). One component of the exhaustion requirement is that the
petitioner has to have fairly presented “his federal claims to the state courts.” Lewis, 390
F.3d at 1025-26 . This means that the petitioner must have asserted “his federal claim
through one complete round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings.” Id. This includes seeking review even if
the review is discretionary rather than mandatory. Id. Until exhaustion has occurred,
federal habeas relief is not available. Id.
Here, Brown admits that he did not attempt to transfer his direct appeal to the
Indiana Supreme Court. He also admits that his post-conviction petition remains
pending in the State trial court. ECF 1 at 1-2. Therefore, he has not yet exhausted his

State court remedies. Until he does so, he cannot obtain federal habeas relief. 28 U.S.C.
§ 2254(b)(1)(A). Accordingly, the petition will be dismissed, but the dismissal will be
without prejudice to his right to file a new petition after exhausting his available state
court remedies.
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, Brown’s one-year limitations period to file in federal court
began to accrue on March 30, 2014, after his time to file a petition to transfer his direct
appeal with the Indiana Supreme Court expired. Ind. R. App. P. 57(C)(1). However, his
limitations period was tolled 129 days later, upon his filing of a post-conviction relief
petition on August 6, 2014. This petition remains pending in the Circuit Court of Wells
County. Brown will have 236 days to file a federal habeas corpus action after the
completion of his State post-conviction relief proceedings. 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
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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.
ACCORDINGLY:
(1) Brad Brown’s petition (ECF 1) is DISMISSED pursuant to RULE 4 OF THE
RULES GOVERNING SECTION 2254 CASES because the claims are unexhausted;
(2) Brad Brown is DENIED a certificate of appealability pursuant to Section 2254
Habeas Corpus Rule 11; and
(3) Brad Brown is DENIED leave to appeal in forma pauperis pursuant to 28
U.S.C. § 1915(a)(3).
SO ORDERED on October 17, 2017.
/s/ Philip P. Simon
Judge
United States District Court

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