# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 30, 2020 *

Decided July 1, 2020

Before

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 19

‐ 3390

J OSHUA RESENDEZ,

Petitioner

‐ Appellant

,

v

.

RICHARD BROWN,

Respondent

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Indiana,

Terre Haute Division.

No. 2:18

‐ cv

‐ 444

J ames Patrick Hanlon,

J udge

.

O R D E R

Joshua Resendez, an Indiana inmate, petitioned for a writ of habeas corpus

under 28 U.S.C. § 2254, challenging a prison policy that renders him ineligible for the

restoration of previously lost good

‐ time credits. The district court dismissed the petition

without prejudice for failure to exhaust state

‐ court remedies. Because that dismissal

allows Resendez to return to federal court after exhausting his state

‐ court remedies,

we dismiss the appeal for lack of jurisdiction.

* We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 19

‐ 3390 Page 2

While incarcerated at Wabash Valley Correctional Facility, Resendez has been

disciplined several times for violating prison rules. In 2017, he lost 200 days of earned

good

‐ time credit after he was found guilty of committing three “Class B” conduct

offenses under the Indiana Department of Correction’s disciplinary code. Also that

year, in July, he was found guilty of two counts of attempted trafficking, a more serious

“Class A” conduct offense, for which he was temporarily placed in restrictive housing.

Resendez petitioned the prison in 2018 to restore his lost good

‐ time credits. See

I ND

. C ODE § 35

‐ 50

‐ 6

‐ 5(c) (“Any

... good time credit of which a person is deprived under

this section may be restored.”). He noted that he had not received a conduct report for a

year and had been in the required credit

‐ earning class for six continuous months—both

prerequisites for credit restoration under prison policy. See I ND

. D EP ’ T OF C ORR

.,

M ANUAL OF P OLICIES & P ROCEDURES

, No. 02–04–101, The Disciplinary Code for Adult

Offenders, at 45–52 (July 2018), www.in.gov/idoc/files/02

‐ 04

‐ 101_The_Disciplinary_

Code_for_ Adult_Offenders___6

‐ 1

‐ 2015.pdf.

Prison authorities denied Resendez’s petition, explaining that he is ineligible for

credit restoration because of his two Class A violations. Department policy provides

that an inmate is not eligible for restoration of any credit lost after June 1, 2015 (the

policy’s effective date) if, after that date, the inmate has been found guilty of an

enumerated Class A offense, including attempted trafficking. See id. at 46–47. The policy

also provides that a guilty finding on a listed offense “shall constitute the ineligibility of

restoration with regard to any and all deprived credit time which occurred during the

[inmate’s] current commitment period.” Id. at 47.

Instead of pursuing his challenge in state court, Resendez petitioned for a writ of

habeas corpus under § 2254 in federal court. He primarily argued that the Department’s

credit

‐ restoration policy violates due process and the Ex Post Facto Clause of the

Constitution. As he sees it, the policy impermissibly bars an inmate found guilty of

certain Class A offenses from obtaining restoration of any previously lost good

‐ time

credits, even where, as in his case, the credits were revoked as punishment for Class B

violations that occurred before and had “nothing do to with” the Class A offenses.

The district court dismissed the petition without prejudice for failure to exhaust

state

‐ court remedies. It acknowledged that Indiana courts lack jurisdiction to review

prison disciplinary decisions that revoke earned credit time. See Grandberry v. Keever

,

735 F.3d 616, 618 (7th Cir. 2013); Blanck v. Ind. Dep’t of Corr.

, 829 N.E.2d 505, 510–11 (Ind.

2005). But Resendez was challenging the Department’s refusal to restore his previouslyNo. 19

‐ 3390 Page 3

lost good

‐ time credits, a claim that, the district court correctly noted, Indiana courts

have the authority to review. See, e.g.

, Young v. State

, 888 N.E.2d 1255, 1256 (Ind. 2008)

(holding that “[state] post

‐ conviction proceedings are the appropriate procedure for

considering properly presented claims for educational credit time”); Young v. Ind. Dep’t

of Corr.

, 22 N.E.3d 716, 719 (Ind. Ct. App. 2014) (rejecting inmate’s equal

‐ protection

challenge to IDOC policy limiting restoration of good

‐ time credits to time lost on

current sentence). The court added that Resendez had not shown cause and prejudice to

excuse the “[p]rocedural default caused by failure to exhaust state remedies.”

Resendez appeals the district court’s dismissal, but we lack jurisdiction to

consider it. As we have concluded in similar cases, the district court’s order dismissing

the petition without prejudice for failing to exhaust state

‐ court remedies is a “nonfinal,

nonappealable order” under 28 U.S.C. § 1291. Gacho v. Butler

, 792 F.3d 732, 733. (7th Cir.

2015); see also Moore v. Mote

, 368 F.3d 754, 755 (7th Cir. 2004). Although there are

“limited circumstances under which a habeas petitioner can get around the seemingly

nonfinal nature of a dismissal without prejudice” (such as when some impediment bars

the petitioner from later refiling in federal court), none applies here. Gacho

, 792 F.3d at

736; see also Dolis v. Chambers

, 454 F.3d 721, 723 (7th Cir. 2006) (dismissal without

prejudice for failing to exhaust state remedies is “effectively final” when new federal

petition would be time

‐ barred). The district court ruled that Resendez’s claims were

unexhausted—meaning “state remedies remain available”—so the dismissal without

prejudice enables him to pursue those remedies before returning to federal court.

Perruquet v. Briley

, 390 F.3d 505, 514 (7th Cir. 2004). In his brief on appeal, the

respondent asserts that a state

‐ court remedy still is available for Resendez to pursue,

and Resendez does not say otherwise. We therefore have no reason to believe that he

will face an obstacle to refiling in federal court after exhausting his state

‐ court remedies.

We recognize that the district court also used the phrase “procedural default” in

its order, but that makes no difference here. If the court had considered the claims

genuinely defaulted, then that means “the opportunity to raise [them] in state court has

passed,” and federal review is barred without a showing of cause and prejudice or a

miscarriage of justice. Perruquet

, 390 F.3d at 514; see also Coleman v. Thompson

, 501 U.S.

722, 750 (1991). But the district court mentioned “procedural default” only nominally; in

substance, it faulted Resendez for failing to exhaust available state remedies. Because

Resendez still may seek review of his claims in state court before returning to pursue

federal habeas relief, we lack jurisdiction over his appeal.

DISMISSED