HANKINS v. STATE OF INDIANA

Filing 10

ENTRY Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - His petition for a writ of habeas corpus is therefore denied without a decision being made as to the merits of his claims. Judgment consistent with this Entry shall now issue. The Court therefore denies a certificate of appealability (See Entry). Copy sent to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 2/9/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DENNIS HANKINS,
Petitioner,
v.
SUPERINTENDENT, Putnamville Correctional
Facility,
Respondent.

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No. 2:16-cv-00408-JMS-MJD

Entry Denying Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Dennis Hankins was convicted in an Indiana state court of attempted burglary and other
offenses. He was also found to be a habitual offender. He now seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254(a).
Having considered the pleadings, the expanded record, and the parties’ arguments, and
being duly advised, the Court finds that Hankins’ petition for writ of habeas corpus should be
denied and that a certificate of appealability should not be issued. These conclusions rest on the
following facts and circumstances:
1.

In his direct appeal, Hankins challenged the sufficiency of the evidence as to the

attempted burglary conviction. The Indiana Court of Appeals rejected this challenge. Hankins v.
State, 9 N.E.3d 259, *1 (Ind.Ct.App. 2014). His petition to transfer was denied. The Indiana state
courts then rejected Hankins’ motions to correct sentence and his petition for post-conviction
relief. Hankins appealed the denial of his third motion to correct sentence. That denial was affirmed

on appeal. Hankins v. State, 45 N.E.3d 68 (Ind.Ct.App. 2016). Hankins likewise appealed the
denial of his petition for post-conviction relief. That appeal was dismissed after Hankins failed to
file a transcript of the lower court record.
2.

The filing of the present action followed. Hankins contends that: (1) the filing of

the attempted burglary charge in the circumstances of this case violated his right to due process;
and (2) the filing of the habitual offender allegation render his sentence erroneous. The respondent
has responded to the allegations of the petition, Hankins has replied, and the record has been
appropriately expanded.
3.

“[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).
4.

Hankins’ habeas claims were not included in his direct appeal or in his action for

post-conviction relief. Hankins’ second habeas claim was presented in one of his motions to correct
erroneous sentence, but the Indiana Court of Appeals held that it was not properly asserted in such
a motion because the claim would require consideration of the pretrial proceedings and did not
allege a facial error in sentencing. Hankins’ appeal from the denial of his petition for post-

conviction relief was dismissed on procedural grounds because no transcript from the lower court
was filed. These circumstances show that Hankins committed procedural default with respect to
each of his habeas claims. Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004)(procedural
default occurs “when a habeas petitioner has failed to fairly present to the state courts the claim on
which he seeks relief in federal court and the opportunity to raise that claim in state court has
passed.”).
5.

A habeas petitioner may overcome procedural default by demonstrating cause for

the default and actual prejudice or by showing that the Court's failure to consider the claim would
result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006);
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
6.

Hankins opposes the respondent’s argument of procedural default, but does so only

by asserting that his habeas claims are meritorious. This is an insufficient basis on which to
overcome his procedural default. A contrary ruling would ignore the rule.
7.

“[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). In the present case, Hankins has
encountered the hurdle produced by the doctrine of procedural default. Henderson v. Cohn, 919
F.2d 1270, 1272 (7th Cir. 1990)(“[a] federal claim that was not raised in the state courts is
procedurally barred and must be dismissed.”)(citing United States ex rel. Simmons v. Gramley,
915 F.2d 1128, 1132 (7th Cir. 1990)). He has not shown the existence of circumstances permitting
him to overcome this hurdle and hence is not entitled to the relief he seeks. His petition for a writ
of habeas corpus is therefore denied without a decision being made as to the merits of his claims.

8.

Judgment consistent with this Entry shall now issue.

9.

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 Hankins has failed
to show that reasonable jurists would find it “debatable 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: February 9, 2017

Distribution:
Electronically Registered Counsel
Dennis Hankins DOC #864208
PUTNAMVILLE CORRECTIONAL FACILITY
Inmate Mail/Parcels
1946 West U.S. Hwy 40
Greencastle, IN 46135