PILJAGIC v. KNIGHT

Filing 4

Entry Converning Selected Matters - Petitioner's 2 Motion for Leave to Proceed in forma pauperis is GRANTED. The petitioner shall have through January 18, 2012, in which to show cause why his petition for a writ of habeas corpus should not be dismissed without prejudice because of the existence of an available remedy in the Indiana state courts. The clerk shall include a copy of the petition for a writ of habeas corpus with the petitioner's copy of this Entry. Signed by Judge Jane Magnus-Stinson on 1/3/2012. (Copy sent to Petitioner via U.S. Mail) (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DANIEL PILJAGIC,

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)
Petitioner,
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vs.
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SUPERINTENDENT, Pendleton
)
Correctional Facility,
)
)
Respondent. )

1:11-cv-01712-JMS-TAB

Entry Concerning Selected Matters
The court, having considered the above action and the matters which are
pending, makes the following rulings:
1.

The petitioner's request to proceed in forma pauperis [2] is granted.

2.
The petition for a writ of habeas corpus is subject to preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the
United States District Courts. Rule 4 provides that upon preliminary consideration
by the district court judge, "[i]f it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not entitled to relief in the district
court, the judge shall make an order for its summary dismissal and cause the
petitioner to be notified." See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
3.
“Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, 28 U.S.C. §2254(b)(1), thereby giving the State
the opportunity to pass upon and correct' alleged violations of its prisoners' federal
rights.” Baldwin v. Reese, 124 S. Ct. 1347, 1349 (2004)(internal quotations and
citations omitted).
a. In particular, a habeas petitioner must fully and fairly present his federal
claims to the state courts before he files his federal habeas petition. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Sturgeon v.
Chandler, 552 F.3d 604, 610 (7th Cir. 2009).

b. Under Indiana law, a claim that a sentence has expired can be brought in
the trial court through an action for post-conviction relief. Mills v. State,
840 N.E.2d 354, 357 (Ind.Ct.App. 2006) (noting that Ind. Post-Conviction
Rule 1(1)(a)(5) provides that "[a] person who has been convicted of, or
sentenced for, a crime by a court of this state, and who claims . . . (5) that
his sentence has expired, his probation, parole or conditional release
unlawfully revoked, or he is otherwise unlawfully held in custody or other
restraint . . . may institute at any time a proceeding under this Rule to
secure relief."). This procedure provides him a meaningful remedy in the
Indiana courts. Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir.
1985).
4.
"The purpose of exhaustion is not to create a procedural hurdle on the
path to federal habeas court, but to channel claims into an appropriate forum,
where meritorious claims may be vindicated and unfounded litigation obviated
before resort to federal court." Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1720
(1992). The petitioner shall have through January 18, 2012, in which to show
cause why his petition for a writ of habeas corpus should not be dismissed without
prejudice because of the existence of an available remedy in the Indiana state
courts.
5.
The clerk shall include a copy of the petition for a writ of habeas
corpus with the petitioner's copy of this Entry.
IT IS SO ORDERED.

01/03/2012
Date: __________________

Distribution:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Daniel Piljagic
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064

Note to Clerk: Processing this document requires actions in addition to docketing and distribution.