MITCHELL v. ZATECKY

Filing 38

Entry Dismissing Action and Directing Entry of Final Judgment - Petitioner Richard Allen Mitchell has not exhausted his habeas claims in the Indiana state courts, which remain open to him. His petition for a writ of habeas corpus is therefore dismissed without prejudice. Judgment consistent with this Entry shall now issue. In addition, the court finds that a certificate of appealability should not issue. (See Entry.) Signed by Judge Jane Magnus-Stinson on 1/15/2016. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

RICHARD ALLEN MITCHELL,

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Petitioner,
v.
MARK SEVIER,
Respondent.

Case No. 2:14-cv-293-JMS-MJD

Entry Dismissing Action and Directing Entry of Final Judgment
For the reasons explained in this Entry, Richard Mitchell’s petition for writ of habeas
corpus must be dismissed without prejudice. In addition, the court finds that a certificate of
appealability should not issue.
I.
A. Background
Richard Mitchell is confined at an Indiana prison serving a sentence imposed following his
trial in the Kosciusko Circuit Court and his conviction for robbery and for possession of a firearm
by a serious violent felon. These convictions are based the jury finding that Mitchell robbed the
Stimulators Gentlemen’s Club in North Webster, Indiana on the evening of August 11-12, 2003.
Mitchell’s convictions were affirmed on direct appeal in Mitchell v. State, No. 43A04-0604-CR00220 (Ind.Ct.App. April 10, 2007). A habitual offender determination was reversed in that same
appeal.

Mitchell now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) and as an
adjunct to that petition seeks an evidentiary hearing. His habeas claims were not included in his
direct appeal. Mitchell’s custodian opposes issuance of a writ of habeas corpus, arguing in part
that the habeas petition presents unexhausted claims and that the petition itself was filed beyond
the applicable statute of limitations.
B. Discussion
"[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). “[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)). “[T]he burden is on the petitioner to raise his federal
claim in the state court at a time when state procedural law permits its consideration on the merits.
. . .” Bell v. Cone, 543 U.S. 447, 451 n.3 (2005).
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 a meaningful remedy in the
Indiana courts. Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985).

Following his direct appeal, Mitchell filed an action for post-conviction relief. He then
withdrew that action before a ruling on the merits was made. He has not shown that the Indiana
state courts are unavailable to him to litigate his habeas claims. The exhaustion of available and
meaningful state court remedies is required by the federal habeas statute. See Baldwin v. Reese,
124 S. Ct. 1347, 1349 (2004)(“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.")(internal
quotations omitted). His petition is therefore premature. The court elects to not address the
respondent’s statute of limitations argument at this point, for dismissal of a petition containing
unexhausted claims will be without prejudice, while the dismissal of a habeas petition on statute
of limitations grounds is an adjudication on the merits. See, e.g., Altman v. Benik, 337 F.3d 764,
766 (7th Cir. 2003) (per curiam) (“We hold today that a prior untimely [28 U.S.C. § 2254] petition
does count [as an adjudication on the merits] because a statute of limitations bar is not a curable
technical or procedural deficiency. . . .”).
When dismissing a habeas corpus petition because it is unexhausted, “[a] district court [is
required] to consider whether a stay is appropriate [because] the dismissal would effectively end
any chance at federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006). Here,
no stay is appropriate because (a) the statute of limitations appears to have already expired, and
(b) a fully unexhausted federal habeas petition may not be stayed, but must be dismissed. See, e.g.,
Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted petition
may not be stayed and observing: “Once a district court determines that a habeas petition contains
only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may
simply dismiss the habeas petition for failure to exhaust.”).

C. Conclusion
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim
is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 14 (1992)
(O'Connor, J., dissenting) (internal citations omitted). "A state prisoner . . . may obtain federal
habeas 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). "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). Mitchell has not exhausted his habeas claims in the Indiana state courts, which remain
open to him. His petition for a writ of habeas corpus is therefore dismissed without prejudice.
Judgment consistent with this Entry shall now issue.
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 Mitchell 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.

Date: January 15, 2016

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

Distribution:
RICHARD ALLEN MITCHELL
DOC #875730
Westville-CF
Westville Correctional Facility
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