PAYNE v. PARKE COUNTY SHERIFF JUSTIN COLE

Filing 12

Entry and Order Dismissing Action - The action must therefore be dismissed without prejudice. 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 Larry J. McKinney on 5/15/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JESSE L. PAYNE,
Petitioner,
vs.
PARKE COUNTY SHERIFF JUSTIN COLE,
Respondent.

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Case No. 2:17-cv-102-LJM-MJD

Entry and Order Dismissing Action
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).
ABefore seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies.@ Baldwin v. Reese, 541 U.S. 27, 29 (2004)(citing 28 U.S.C.
'2254(b)(1)). “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). 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). 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.").

In this case, the procedural inquiry is conclusive as to the proper outcome. The
amended habeas petition shows on its face that the prosecution of petitioner Payne in the
Indiana state courts is not complete. This shows that his present habeas filing was
premature. The action must therefore be dismissed without prejudice.
II.
Judgment consistent with this Entry shall now issue.
III.
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 Payne has
failed to show that reasonable jurists would find it “debatable whether [this court] was
correct in its procedural ruling[s].” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
therefore denies a certificate of appealability.
IT IS SO ORDERED.

5/15/2017
Date: _________________

Distribution:
JESSE L. PAYNE
458 Strawberry Road
Rockville, IN 47872

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