COOPER v. STATE OF INDIANA

Filing 15

ORDER - denying Respondent's Motion to Dismiss 11 . The respondent shall have through July 25, 2014, in which to file a further response to the petition for writ of habeas corpus. The petitioner shall have twenty-eight (28) days in which to file any reply to the respondent's response. **SEE ENTRY** Copy mailed via US Mail. Signed by Judge Tanya Walton Pratt on 6/9/2014. (ADH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRADLEY COOPER,
Petitioner,
v.
BRIAN SMITH,
Respondent.

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No. 1:14-cv-0057-TWP-DKL

Entry Denying Motion to Dismiss and Directing Further Proceedings
I.
The respondent has filed a motion to dismiss the petitioner’s petition for writ of habeas
corpus on the ground that the petitioner failed to exhaust his administrative remedies as required
by 28 U.S.C. § 2254(b)(1)(A). Indiana prisoners must pursue their available administrative
remedies before filing a habeas petition. Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002);
Markham v. Clark, 978 F.2d 993, 995 (7th Cir. 1992). The failure to do so constitutes a
procedural default, unless the petitioner establishes cause and prejudice to excuse the procedural
default. See Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir. 2002).
The petitioner asserts that after he mailed his first step appeal, he did not receive any
response from the Facility Head. Therefore, he did not have the form to send on to the Final
Reviewing Authority. In essence, he contends that he was prevented from completing the
exhaustion process. The Court finds that under these circumstances, the petitioner’s failure to
exhaust should be excused and the action should proceed to a determination on the merits. The
respondent’s motion to dismiss [dkt. 11], therefore, is denied.

II.
The respondent shall have through July 25, 2014, in which to file a further response to
the petition for writ of habeas corpus. The petitioner shall have twenty-eight (28) days in which
to file any reply to the respondent’s response.
IT IS SO ORDERED.
06/09/2014
Date: __________________

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Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Bradley Cooper, No. 147480
Wabash Valley Correctional Facility
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