Filing 14

ENTRY Discussing Petition for a Writ of Habeas Corpus and Denying Certificate of Appealability: The petitioner's custodian, named in his official capacity only, is substituted as the respondent in this action. The dismissal of the action shall be without prejudice. The Court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus-Stinson on 6/25/2014. Copy sent via US Mail.(DW)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION JOSEPH D. TUNSTILL, Petitioner, v. DAVID BURCH1, Respondent. ) ) ) ) ) ) ) ) Case No. 1:14-cv-916-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 Joseph Tunstill for a writ of habeas corpus must be dismissed without prejudice. In addition, the Court finds that the certificate of appealability should not issue. I. "[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. The inquiry in this case centers on exhaustion. A habeas petitioner such as Tunstill must give the state court a meaningful opportunity to consider the substance of the claims later presented in federal court. Id. Stated otherwise, "[a] state prisoner . . . may obtain federal habeas 1 The petitioner’s custodian, named in his official capacity only, is substituted as the respondent in this action. review of his claim only if he has exhausted his state remedies and avoided procedurally defaulting his claim." Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). It has been noted by the Supreme Court that: 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." Duncan v. Henry, 513 U. S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U. S. 270, 275 (1971) (citation omitted)). To provide the State with the necessary “opportunity,” the prisoner must “fairly present” his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Duncan, supra, at 365-366; O'Sullivan v. Boerckel, 526 U. S. 838, 845 (1999). Baldwin v. Reese, 124 S. Ct. 1347, 1349 ( 2004). Under Indiana law, "[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." Ind. PostConviction Rule 1(1)(a)(5) provides that). This procedure provides him a meaningful remedy in the Indiana courts. Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985). Tunstill has not sought a remedy under the post-conviction rule prior to filing his petition for writ of habeas corpus. "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, 112 S. Ct. 1715, 1720 (1992). The only manner in which that purpose can be served is by dismissing this action, without prejudice, and allowing Tunstill to continue his challenge in the Indiana courts, if he elects to do so. So shall it be, and judgment consistent with this Entry shall now issue. The dismissal of the action shall be without prejudice. 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 Tunstill has failed to show that reasonable jurists would find it Adebatable 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. 06/25/2014 Date: __________________ Distribution: Joseph D Tunstill No. 137626 Plainfield Short Term Offender Program Facility 501 West Main St. Stop 46168 Plainfield, IN 46168 _______________________________ Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

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