Freeman v. Warden

Filing 3

OPINION AND ORDER: DISMISSING 2 PETITION for Writ of Habeas Corpus, filed by Dennis R Freeman, Jr., pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES because the claims are unexhausted; and DENYING a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. Signed by Judge Robert L Miller, Jr on 11/17/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DENNIS R. FREEMAN, JR.,

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Petitioner,
v.
WARDEN,
Respondent.

CAUSE NO. 3:17-CV-789-RLM-MGG

OPINION AND ORDER
Dennis R. Freeman, Jr., a prisoner without a lawyer, filed a habeas petition
under 28 U.S.C. § 2254 challenging his state convictions and 7-year sentence for
battery, criminal recklessness, intimidation, and resisting law enforcement in
Case No. 02D06-1511-F5-329 by the Allen County Superior Court on June 3,
2016. ECF 1.
Before considering the petition’s merits, the court must ensure that the
petitioner 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). As the our
court of appeals has explained:
Inherent in the habeas petitioner’s obligation to exhaust his state
court remedies before seeking relief in habeas corpus, see 28 U.S.C.
§ 2254(b)(1)(A), 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 system, including levels at
which review is discretionary rather than mandatory.

Id. at 1025-1026 (internal citations and quotation marks omitted). Until
exhaustion has occurred, federal habeas relief isn’t available. See id.
Upon review of the online court dockets, Mr. Freeman didn’t try to transfer
his direct appeal to the Indiana Supreme Court, https://publicaccess.courts
.in.gov/docket/Search/ Detail?casenumber=02A03-1606-CR-01386, and his postconviction petition remains pending in the state trial court. https://public.courts
.in.gov/mycase/#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6Ik1qZzVNREV
3TnpFMk1URXhPamt5TnpNNU5UY3lOams9In19/. Mr. Freeman hasn’t yet
exhausted his state court remedies. He can’t obtain federal habeas relief until he
does so. 28 U.S.C. § 2254(b)(1)(A). The court must dismiss his petition, but the
dismissal will be without prejudice to his right to file a new petition after he
exhausts 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). The Indiana Court of Appeals
affirmed Mr. Freeman’s conviction and sentence on March 30, 2017. Freeman v.
State, 02A03-1606-CR-1386, slip op. (Ind. Ct. App. March 30, 2017). Mr.
Freeman’s one-year limitations period to file in federal court began to accrue on
June 28, 2017, 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
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period was tolled upon his filing of a post-conviction relief petition on May 16,
2017. This petition remains pending in the Allen County Superior Court. It
appears as though Mr. Freeman will still have all of his 365 days to file a federal
habeas corpus action after the completion of his State post-conviction relief
proceedings. Dismissing this petition won’t 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, the court must consider whether to grant or deny a certificate of
appealability. Section 2254 Habeas Corpus Rule 11. To obtain a certificate of
appealability when the court dismisses a petition on procedural grounds, a
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). There is no basis for finding that jurists of reason would debate the
correctness of this procedural ruling, so 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 these reasons:

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(1) Dennis Freeman’s petition (ECF 1) is DISMISSED pursuant to
RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES because the claims are
unexhausted; and
(2) Dennis Freeman is DENIED a certificate of appealability pursuant
to Section 2254 Habeas Corpus Rule 11.
SO ORDERED.
ENTERED: November 17 , 2017

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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