CAUDLE v. BROWN

Filing 21

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability: His petition for a writ of habeas corpus is therefore dismissed without prejudice. Judgment consistent with this Entry shall now issue. The Court therefore denies certificate of appealability (SEE ENTRY). Copy sent to Petitioner via US Mail. Signed by Judge Larry J. McKinney on 5/12/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

GREGORY ALLEN CAUDLE,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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No. 2:16-cv-411-LJM-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Gregory Allen Caudle for a
writ of habeas corpus must be denied and the action dismissed without prejudice. In
addition, the Court finds that a certificate of appealability should not issue.
I. The Petition for Writ of Habeas Corpus
A. Background
Caudle is confined at an Indiana prisoner serving the executed portion of a 38-year
sentence imposed in 2013 following his convictions in an Indiana state court for burglary
and for resisting law enforcement. He was also found to be a habitual offender. He
started a direct appeal, but moved to withdraw the appeal on January 30, 2014. On
February 14, 2014, the Indiana Court of Appeals dismissed the direct appeal with
prejudice.

The dismissal of Caudle’s direct appeal was followed with the filing of his action
for post-conviction relief on August 27, 2014, and the filing of a verified motion for
discharge and request for production of certain documents on November 6, 2014. This
latter motion was denied on the same day it was filed. On December 4, 2014, Caudle
filed a notice of appeal. That appeal was dismissed on March 31, 2015, for lack of
jurisdiction. Meanwhile, the post-conviction action had been briefed, but was dismissed
without prejudice at Caudle’s request. The following indicates what then transpired:
March 14, 2016
June 22, 2016
June 28, 2016
August 12, 2016
August 22, 2016
August 24, 2016
August 24, 2016
August 26, 2016

action for post-conviction relief filed
state habeas corpus petition filed
state habeas corpus petition denied
motion to supplement and amend the action for postconviction relief; motion denied
notice of appeal filed
another state habeas corpus petition filed
state habeas corpus petition denied
notice of appeal filed

The respondent has appeared in the action and argues that Caudle has not exhausted
his available state court remedies and that the action should therefore be dismissed
without prejudice. The factual premise for this argument is that the post-conviction appeal
is still pending as No. 49A05-1608-PC-01934. Caudle vehemently resists the
respondent’s argument.
B. Discussion
As Justice O'Connor noted in Daniels v. United States, “[p]rocedural barriers, such
as statutes of limitations and rules concerning procedural default and exhaustion of
remedies, operate to limit access to review on the merits of a constitutional claim.” 532
U.S. 374, 381 (2001). See also United States v. Olano, 507 U.S. 725, 731 (1993).
Accordingly, “when 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).
The hurdle Caudle faces here is the exhaustion of available remedies in the state
courts. “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.” Baldwin v.
Reese, 124 S. Ct. 1347, 1349 (2004) (internal quotations and citations omitted). The
exhaustion requirement is satisfied once a petitioner fairly presents his claims to each
level of the state-court system for those courts' review. See O'Sullivan v. Boerckel, 526
U.S. 838 (1999).
In Indiana, an action for post-conviction relief constitutes a meaningful state court
remedy. See Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985). A case in point
is Brown v. State, 458 N.E.2d 245 (Ind.Ct.App. 1983), wherein the defendant’s probation
was revoked based solely upon the fact that he was subsequently convicted for another
crime. However, when his subsequent conviction was overturned on appeal, the
defendant filed a petition for post-conviction relief claiming that the revocation of his
parole was not supported by the evidence. The trial court denied Brown’s petition for postconviction relief, but on appeal that decision was reversed. The Indiana Court of Appeals
held that (1) if the revocation of a defendant's probation was based solely upon a
conviction that was subsequently overturned on appeal, additional proof was required to
support the revocation, id. at 249, and (2) the recommended procedure in the event of a
reversal of a conviction which formed the basis of a revocation of probation is to hold a

new hearing to reconsider the prior revocation at which the court may hear all pertinent
evidence.
Caudle explains that although he started a direct appeal, he resolved to follow the
“Davis/Hatton” procedure--a procedure which terminates or suspends a previously
initiated direct appeal upon a request for remand or stay, in order to allow the defendant
to pursue a petition for post-conviction relief in the trial court; issues initially raised in the
appeal as well as those determined in the post-conviction relief proceeding may be raised
in the appeal. See Hatton v. State, 626 N.E.2d 442 (Ind. 1993); Davis v. State, 368 N.E.2d
1149 (Ind. 1977). Caudle claims the procedure was “sabotaged” when his direct appeal
was dismissed with prejudice rather than without prejudice.
Even if Caudle’s Davis/Hatton strategy went astray, there is still an appeal from
the denial of post-conviction relief pending. That fact renders the filing of this federal
habeas action premature. “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). Caudle
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.
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 Caudle 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). Indeed,
because the petitioner’s habeas challenge is progressing as already noted in this Entry,
the dismissal ordered herein is a nonfinal order and hence is not even appealable. See
Gacho v. Butler, 792 F.3d 732, 736 (7th Cir. 2015). The Court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

Date: __________________
5/12/2017

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Jesse R. Drum
INDIANA ATTORNEY GENERAL
[e-mail]
GREGORY ALAN CAUDLE
900165
WABASH VALLEY - CF
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P.O. Box 1111
CARLISLE, IN 47838