TRUTH v. BUTTS
Filing
19
ENTRY Dismissing Action and Directing Entry of Final Judgment. The dismissal of the action shall be without prejudice. Truth's motion for summary judgment [Docket No. 16] is denied. Judgment consistent with this Entry shall now issue. The court denies a certificate of appealability. SEE ORDER. Signed by Judge Larry J. McKinney on 8/5/2015. Copy sent to Petitioner via U.S. Mail. (BGT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BENNIE TRUTH,
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
KEITH BUTTS, Superintendent,
Respondent.
Case No. 1:15-cv-00415-LJM-DML
Entry Dismissing Action and Directing Entry of Final Judgment
I.
Bennie Truth is a prisoner of the State of Indiana. He seeks a writ of habeas corpus, alleging
that the Indiana Parole Board committed error in revoking his parole on June 12, 2014. This
followed the resolution of charges of new criminal conduct on April 22, 2014.
Before considering the merits of a habeas petition, a court must ensure that the petitioner
has exhausted all available remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). Exhaustion “generally entails fairly presenting the
legal and factual substance of every claim to all levels of state court review.” Pillette v. Foltz, 824
F.2d 494, 496 (6th Cir. 1987). 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. Post-Conviction Rule 1(1)(a)(5).
Exhaustion of state remedies is determined as of the time that the habeas petition is filed.
Verdin v. O'Leary, 972 F.2d 1467, 1483 (7th Cir. 1992). In this case, at the time Truth’s habeas
petition was filed his appeal from the revocation of his parole was pending in the Indiana Court of
Appeals as No. 33A01-1411-MI-511. That appeal was dismissed for procedural reasons on July 1,
2015.
Truth’s habeas claim is that he was improperly denied a prompt parole revocation hearing
following his arrest in November 2013. The court cannot reach the merits of this claim, however,
because Truth had not exhausted his available state court remedies at the time the action was filed.
The exhaustion requirement may be excused if “there is either an absence of available State
corrective process[ ] or . . . circumstances exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i) & (ii). Truth blames a court clerk for having
caused his appeal in No. 33A01-1411-MI-511 to be rejected as untimely and states that he has not
filed an action for post-conviction relief because the trial court has already shown its prejudice
against him. The first point is directed to the appropriateness of the disposition of the appeal, not
to the existence of the procedures available to him. As to the second point, it does not excuse
exhaustion of state remedies because, when a petitioner claims that he cannot obtain relief from
the state courts, the pertinent question is not whether the state court would be inclined to rule in
the petitioner's favor, but whether there is any available state procedure for determining the merits
of petitioner's claim. White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993).
“[F]ederal courts will not review a habeas petition unless the prisoner has fairly presented
his claims ‘throughout at least one complete round of state-court review, whether on direct appeal
of his conviction or in post-conviction proceedings.’” Johnson v. Foster, 786 F.3d 501, 504 (7th
Cir. 2015) (quoting Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014), and citing 28 U.S.C.
§ 2254(b)(1)).
"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. Tamayo-Reyes, 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 Truth to first present or finish his challenge in the Indiana
courts, if he elects to do so. Accordingly, Truth’s petition for writ of habeas corpus is denied and
the action is dismissed.
The dismissal of the action shall be without prejudice. Truth’s motion for summary
judgment [Docket No. 16] is denied.
II.
Judgment consistent with this Entry shall now issue.
III.
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 Truth has failed to show that
reasonable jurists would find Ait debatable whether the petition states a valid claim of the denial of
a constitutional right@ or 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.
Date: __________________
08/05/2015
Distribution attached.
Distribution:
Electronically Registered Counsel
BENNIE TRUTH
951825
NEW CASTLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?