PALMER v. SMITH

Filing 9

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - Palmer is confined at an Indiana prisoner serving the executed portion of a sentence imposed on February 23, 2016 following his plea of guilty to causin g death when operating a motor vehicle while intoxicated. Two motions to modify Palmer's sentence were summarily denied. These were followed by the filing of a petition for post-conviction relief, which was withdrawn without prejudice on Novem ber 7, 2016 at Palmer's request. This action followed. Palmer 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. The Court denies a certificate of appealability. (See Entry.) Signed by Judge William T. Lawrence on 5/2/2017.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

CHARLES WAYNE PALMER,
Petitioner,
vs.
BRIAN SMITH,
Respondent.

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No. 2:17-cv-00049-WTL-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Charles Palmer 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
Palmer is confined at an Indiana prisoner serving the executed portion of a sentence
imposed on February 23, 2016 following his plea of guilty to causing death when operating a
motor vehicle while intoxicated. Two motions to modify Palmer’s sentence were summarily
denied. These were followed by the filing of a petition for post-conviction relief, which was
withdrawn without prejudice on November 7, 2016 at Palmer’s request. This action followed.

The respondent has appeared in the action and argues that Palmer 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 Palmer has two viable state court remedies available
to assert the claims in his habeas petition which challenge the fact or the duration of his
confinement. The first of this is a motion for leave to file a belated direct appeal and the second of
these is an action for post-conviction relief. Palmer started down this latter path, but then caused
the action to be withdrawn without prejudice.
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 Palmer 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.
O'Sullivan v. Boerckel, 526 U.S. 838 (1999).

In Indiana, an action for post-conviction relief constitutes a meaningful state court remedy.
Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985). At a minimum, Palmer may re-file
such an action in the trial court and pursue it to its conclusion. He offers no sound reason why this
course of action is not available to him and why it would not be a meaningful remedy for him.
That fact renders the filing of this federal habeas action premature.
C. Conclusion
“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). Palmer 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. Certificate of Appealability
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 Palmer 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. Gacho v. Butler, 792 F.3d 732, 736 (7th Cir. 2015). The Court
therefore denies a certificate of appealability.
IT IS SO ORDERED.

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Date: 5/2/17
Distribution:
Eric Parker Babbs
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
CHARLES WAYNE PALMER
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