TUNSTILL v. BURCH

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)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSEPH D. TUNSTILL,
Petitioner,
v.
DAVID BURCH1,
Respondent.

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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