SLOAN v. WABASH VALLEY CORRECTIONAL FACIILITY

Filing 14

ENTRY Directing Further Proceedings - Petitioner must use Indiana's post- conviction relief process if it is available to him. He shall have through April 4, 2012, in which to explain why the present action should not be dismissed without prejudice so that he can exhaust this available remedy under Indiana law through the filing of an action for post-conviction relief. Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 3/13/2012.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ROGER SLOAN,

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Petitioner,
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vs.
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RICHARD BROWN, Superintendent, )
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Respondent.
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2:11-cv-255-JMS-DKL

Entry Directing Further Proceedings
For the reasons explained in this Entry, further proceedings are warranted to
permit the court to determine whether the exhaustion requirement of the federal
habeas corpus statute requires habeas corpus petitioner Roger Sloan to return with
his claim to the Indiana state courts.
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). The exhaustion requirement is that a state prisoner, before
filing a habeas petition, has presented the highest state court available with a fair
opportunity to rule on the merits of each claim he seeks to raise in this case. 28
U.S.C. ' 2254(b), (c). “An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of
the State to raise, by any available procedure, the question presented.” 28 U.S.C.
§ 2254(d). See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners
must give the state courts one full opportunity to resolve any constitutional
issues.”).
Under Indiana law, a claim that a sentence has expired can be brought in the
trial court through an action for post-conviction relief. Mills v. State, 840 N.E.2d

354, 357 (Ind.Ct.App. 2006) (noting that Ind. Post-Conviction Rule 1(1)(a)(5)
provides: “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.”). This procedure provides a defendant making such a claim
with a meaningful remedy in the Indiana courts. Wallace v. Duckworth, 778 F.2d
1215, 1219 (7th Cir. 1985).
II.
Roger Sloan seeks habeas corpus relief based on his claim that his
sentence in No. 05A-2-9710-CR-678 has been fully served. His contention is that on
September 13, 2009, he was discharged from that sentence and released to a
consecutive sentence. Sloan’s custodian argues that Sloan is not entitled to
habeas relief for both procedural and substantive reasons.
The respondent argues that there is an available remedy in the state courts,
consisting of an action for post-conviction relief. Sloan acknowledges this argument,
but replies that he has already challenged his conviction in an appeal and in an
action for post-conviction relief. He also states that “the cause has been completed
according to Indiana case law in Meeker v. Indiana Parole Board, 794 N.E.2d 1105
(Ind.Ct.App. 2003).”
Sloan’s response to the respondent’s exhaustion argument is not quite apt. It
is not suggested that Sloan retains an available remedy in the Indiana state courts
to challenge his conviction or sentence. Indeed, that is not what Sloan challenges
here. Instead, as noted above, Sloan challenges the Indiana Department of
Correction’s determination that his sentence in No. 05A-2-9710-CR-678 has not
expired. This is different than the challenges which have already been presented to
the Indiana state courts in a direction appeal and in an action for post-conviction
relief. Sloan’s release from the commitment associated with the conviction is
obviously factually and legally distinct from any challenge which could have been
presented in an appeal or a post-conviction challenge to the conviction or sentence.
This averts Sloan’s concern that an action for post-conviction relief based on the
habeas claim would not be permitted in the state courts. This was recognized in
State v. Metcalf, 852 N.E.2d 585 (Ind.Ct.App. 2006), where a claim factually similar
to Sloan’s was presented and adjudicated in a successive petition for post-conviction
relief. Id. at 586 (“Metcalf filed a successive petition for post-conviction relief,
claiming that his parole was improperly revoked in 2004 because he had not been
on parole at that time. In effect, Metcalf maintained that he had been effectively
discharged from parole in 1999 when the Parole Board granted a ‘turn over’ to serve
the sentence for [the new criminal conduct which occurred] while he was on
parole.”).

III.
Sloan must use Indiana’s post-conviction relief process if it is available to
him.
He shall have through April 4, 2012, in which to explain why the present
action should not be dismissed without prejudice so that he can exhaust this
available remedy under Indiana law through the filing of an action for postconviction relief.
IT IS SO ORDERED.

03/13/2012
Date: _________________
_______________________________

Distribution:
Roger Sloan
DOC #910908
Wabash Valley Correctional Facility
6908 S. Old U.S. Highway 41
P.O. Box 500
Carlisle, IN 47838-1111
All Electronically Registered Counsel

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