PANNELL v. NEAL

Filing 41

ENTRY and ORDER Dismissing Action: In this case, the procedural inquiry is conclusive as to the proper outcome. The habeas petition shows on its face that the proceedings of petitioner Pannell in the Indiana state courts are not complete. This shows that his present habeas filing was premature. The action must therefore be dismisse d without prejudice. Petitioner's motion to amend his petition [dkt. 40] is denied. The parties agree that this action is not a good candidate for a stay and abey and accordingly, this court will not pursue that subject further (see Entry for additional information). Judgment consistent with this Entry shall now issue. Copy to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 5/1/2014.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DAVID PANNELL,
Petitioner,
vs.
SUPERINTENDENT, Indiana State Prison,

Respondent.

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1:12-cv-01301-JMS-DML

Entry and Order Dismissing Action
I.
ABefore seeking a federal writ of habeas corpus, a state prisoner must exhaust available
state remedies.@ Baldwin v. Reese, 541 U.S. 27, 29 (2004)(citing 28 U.S.C. '2254(b)(1)). “An
applicant shall not be deemed to have exhausted the remedies available in the courts of the State
. . . if he has the right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(d). The exhaustion requirement is that a state prisoner, before
filing a habeas petition, has presented the highest state court available with a fair opportunity to
rule on the merits of each claim he seeks to raise in this case. 28 U.S.C. ' 2254(b), (c). See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate prisoners must give the state courts
one full opportunity to resolve any constitutional issues.").
In this case, the procedural inquiry is conclusive as to the proper outcome. The habeas
petition shows on its face that the proceedings of petitioner Pannell in the Indiana state courts are
not complete. This shows that his present habeas filing was premature. The action must therefore

be dismissed without prejudice. Petitioner’s motion to amend his petition [dkt. 40] is denied.
II.
The parties agree that this action is not a good candidate for a stay and abey and
accordingly, this court will not pursue that subject further.
III.
Judgment consistent with this Entry shall now issue.
IV.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the court finds that Pannell has failed
to show that reasonable jurists would find it “debatable whether [this court] was correct in its
procedural ruling[s].” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

05/01/2014
Date: _________________
Distribution:
David Pannell
DOC #963265
Indiana State Prison
Inmate Mail/Parcels
One Park Row
Michigan City, IN 46360
Electronically Registered Counsel

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