Varnado v. Warden

Filing 3

OPINION AND ORDER: Patrick Varnados 1 petition is DISMISSED WITHOUT PREJUDICE pursuant to Section 2254 Habeas Corpus Rule 4 because the claim is unexhausted; a certificate of appealability is DENIED pursuant to Section 2254 Habeas CorpusRule 11; and the Clerk is DIRECTED to close this case. Signed by Judge Philip P Simon on 11/13/2017. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PATRICK VARNADO,
Petitioner,
v.
WARDEN,
Respondent.

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Case No. 3:17CV819-PPS

OPINION AND ORDER
Patrick Varnado, a pro se prisoner, filed a habeas corpus petition attempting to
challenge the revocation of his parole in connection with his 1985 conviction and 60 year
sentence for murder by the Lake County Superior Court.1 However, before I can consider
a habeas corpus petition challenging a State proceeding, the petitioner must have
previously presented his claim 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, 1025-1026
(7th Cir. 2004).
There are two possible methods for challenging a parole revocation in Indiana: by
filing a post-conviction relief petition, Receveur v. Buss, 919 N.E.2d 1235 (Ind. Ct. App.
2010), or by filing a State habeas corpus petition if the inmate is seeking immediate release.
Lawson v. State, 845 N.E.2d 185, 186 (Ind. Ct. App. 2006). Furthermore, if a state habeas

Under cause numbers 3CR-31-285-122, 3CR-36-285-138, and 3CR30-285-121.

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corpus petition is improperly filed, it will be converted to a post-conviction petition.
Hardley v. State, 893 N.E.2d 740, 743 (Ind. Ct. App. 2008); Ward v. Ind. Parole Bd., 805 N.E.2d
893 (2004). Here, Varnado’s habeas corpus petition indicates that he has not presented his
claim to any State court in any proceeding. ECF 1 at 1, 2. Therefore he has not exhausted
his State court remedies and this case must be dismissed without prejudice so that he can
exhaust this claim in the State courts. After he has ultimately presented his claim to the
Indiana Supreme Court, if he has not yet obtained relief, then he may return to federal
court and file a new habeas corpus petition.
Pursuant to Section 2254 Habeas Corpus Rule 11, I must consider whether to grant
or deny a certificate of appealability. To obtain a certificate of appealability when the
petition is dismissed 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 denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). As previously explained, the claim presented by
Varnado is unexhausted. Because there is no basis for finding that jurists of reason would
debate the correctness of this procedural ruling or find a reason to encourage him to
proceed further, a certificate of appealability must be denied.
ACCORDINGLY:
(1) Patrick Varnado’s petition is DISMISSED WITHOUT PREJUDICE pursuant to
Section 2254 Habeas Corpus Rule 4 because the claim is unexhausted;

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(2) a certificate of appealability is DENIED pursuant to Section 2254 Habeas Corpus
Rule 11; and
(3) the Clerk is DIRECTED to close this case.
SO ORDERED.
ENTERED: November 13, 2017
/s/ Philip P. Simon
Judge
United States District Court

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