LEWIS v. STATE OF INDIANA

Filing 6

ENTRY Discussing Petition for a Writ of Habeas Corpus and Denying Certificate of Appealability - Lewis' petition for writ of habeas corpus does not permit the court to consider the merits of his claims. The action will therefore be dismissed without prejudice. Judgment consistent with this Entry shall now issue. The court denies a certificate of appealability. Signed by Judge Jane Magnus-Stinson on 5/7/2013. (copy to Petitioner via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARK A. LEWIS,
Petitioner,
v.
STATE OF INDIANA,
Respondent.

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No. 1:13-cv-280-JMS-MJD

Entry Discussing Petition for a Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Mark Lewis for a writ of habeas
corpus must be denied and the action dismissed without prejudice. In addition, the court finds
that the certificate of appealability should not issue.
I.
Lewis’ petition for a writ of habeas corpus is subject to preliminary review required by
Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Court.
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).
"[W]hen examining a habeas corpus petition, the first duty of a district court . . . is to
examine the procedural status of the cause of action." United States ex rel. Simmons v. Gramley,
915 F.2d 1128, 1132 (7th Cir. 1990). That examination should entail two inquiries: "whether the
petitioner exhausted all available state remedies and whether the petitioner raised all his claims

during the course of the state proceedings." Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.
1988), cert. denied, 109 S. Ct. 1648 (1989). "If the answer to either . . . inquir[y] is `no,' the
petition is barred either for failure to exhaust state remedies or for procedural default." Id.
As to exhaustion of state remedies, a petitioner must “assert his federal claim through one
complete round of state-court review, either on direct appeal of his conviction or in postconviction 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.” Lewis v. Sternes, 390 F.3d 1019, 1025–26 (7th Cir. 2004).
Lewis claims that his 2010 conviction in Marion County for Burglary is tainted by errors
of prosecutorial misconduct and ineffective assistance of counsel. Lewis notes in his petition for
writ of habeas corpus that the appeal of the denial of his petition for post-conviction relief in No.
49G05-1008-PC-066083 is pending. Until that process is complete, a habeas challenge is
premature.
“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. TamayoReyes, 504 U.S. 1, 10 (1992). As presented at this point, therefore, Lewis’ petition for writ of
habeas corpus does not permit the court to consider the merits of his claims. The action will
therefore be dismissed without prejudice.
Judgment consistent with this Entry shall now issue.

II.
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 Lewis has failed to
show that reasonable jurists would find it “debatable whether [this court] was correct in its
procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

05/07/2013
Date: __________________
_______________________________

Distribution:
Mark Anthony Lewis
2250 N. Capitol Avenue
Indianapolis, IN 46208

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