United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 28, 2014

Decided August 19, 2014

Before

JOEL M. FLAUM, Circuit Judge

DANIEL A. MANION, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 13-1748

JOSEPH M. MONEGAIN, III,

Petitioner-Appellant,

v.

JESSE CARLTON, Chief Probation

Officer,

Respondent-Appellee.

Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

No. 13-cv-55

James T. Moody, 

Judge.

O R D E R

Joseph Monegain was convicted in Indiana state court of two counts of criminal

confinement and one count of battery. He appealed, but the state court affirmed his

conviction. Monegain then filed a petition in state court for post-conviction relief,

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 13-1748 Page 2

arguing, among other things, ineffective assistance of appellate counsel. Monegain also

filed a petition for habeas corpus relief in federal court. The district court denied that

petition without prejudice because Monegain’s state post-conviction proceedings were

still pending. In dismissing his petition, the district court rejected Monegain’s argument

that he was excused from exhausting his state court remedies because of an

“inordinate” and “unjustifiable” delay in the state court’s resolution of his case. The

district court also denied Monegain a certificate of appealability, but this court granted

the certificate of appealability. Five days before oral argument, the state trial court

denied Monegain’s petition for post-conviction relief, rejecting Monegain’s claim of

ineffective assistance of counsel, malicious prosecution, and judicial bias. While the

state trial court had delayed Monegain’s case for more than two years, now that it has

issued its decision there is no longer an impediment to Monegain seeking resolution of

his state post-conviction petition in the Indiana appellate courts. Accordingly, because

Monegain has not exhausted his state court remedies, we affirm the district court’s

dismissal of his petition for habeas corpus without prejudice.

I.

In February 2008, Monegain got into a fight with his ex-girlfriend Carol

McElfresh, with whom he still lived. During the fight, he started pushing, grabbing, 1

and throwing McElfresh. Two other individuals, Jessica Walpole and Larry Murray,

were also living in the same house. Walpole heard loud voices and sounds “like things

were being thrown” and she went upstairs to investigate. Walpole told Monegain to get

away from McElfresh. Monegain turned on Walpole and pushed her against the stove.

McElfresh got between Walpole and Monegain, but Monegain grabbed McElfresh and

threw her down again. Walpole then grabbed a knife from the stovetop and ran to the

basement stairs, yelling to Murray to call the police. McElfresh saw Monegain going to

her bedroom saying “I know; I’ll show them; I’ll get the gun.” She saw him head to the

side of the bed where she kept her shotgun and crouch down. McElfresh ran to her

neighbor’s house and told them to call 911. Meanwhile, Walpole and Murray stayed in

the basement waiting for the police to arrive. From the basement, Murray could see the

bottom of Monegain’s legs at the top of the stairs and heard him “breech the gun” while

 We take these facts from the Indiana appellate court decision affirming 1

Monegain’s conviction, which are presumed to be correct. Harris v. Thompson, 698 F.3d

609, 613 (7th Cir. 2012). 
No. 13-1748 Page 3

yelling “I’m going to kill you, mother f*****, I’m going to blow your f****** heads off.” 

After a standoff with police, Monegain eventually exited the house. A search of the

house revealed a shotgun loaded with two live shells on top of McElfresh’s bed. 

Based on these events, Monegain was charged and later convicted in Indiana

state court of two counts of criminal confinement and one count of battery. He was

sentenced on July 28, 2008, to concurrent terms of ten years’ imprisonment, with four

years of the sentence suspended. He served three years in prison and then was released

and began probation on July 28, 2011. Monegain completed his probation on July 28,

2014.2

Following his conviction, Monegain appealed, challenging the sufficiency of the

evidence. The Indiana Court of Appeals affirmed. Monegain did not seek review in the

Indiana Supreme Court or the United States Supreme Court. On April 20, 2010,

Monegain filed a pro se petition for post-conviction relief in the state trial court, alleging,

among other things, ineffective assistance of appellate counsel. After filing that petition,

Monegain filed several motions and petitions in state court seeking to force the state

trial court to rule on his claims. He also amended the post-conviction petition three

times, with the final amendment coming on August 1, 2011. On August 29, 2011, the

trial court set a briefing schedule, giving Monegain sixty days to file supporting

affidavits and the State sixty days to respond. The State did not respond and the

petition was fully briefed as of February 29, 2012. 

After nearly a year with no action by the state trial judge on his post-conviction

petition, on January 29, 2013, Monegain filed this petition for a writ of habeas corpus.3

 Even though Monegain has served his sentence and completed his term of 2

probation, his petition for habeas relief is not moot because “we presume collateral

consequences from his criminal conviction,” such as “the inability to possess firearms

lawfully.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008).

 He had previously filed a petition for habeas relief in January 2012, but that 3

petition was dismissed without prejudice because Monegain’s post-conviction

proceedings were still pending and this court denied Monegain’s request for a

(continued...)
No. 13-1748 Page 4

In his pro se habeas petition, Monegain alleged that his appellate attorney was

ineffective for failing to argue his trial counsel was ineffective by not objecting to the

use of inadmissible evidence and also by his “failure to impeach.” Before the district

court, Monegain acknowledged that he had not exhausted his state court remedies, but

argued that he was excused from doing so because of an “inordinate” and

“unjustifiable” delay in the state court’s resolution of his case. The district court rejected

that argument and this court granted a certificate of appealability. 

Now represented by counsel, Monegain appeals. In his brief, Monegain again

argued that he is excused from the exhaustion requirement because of the state trial

court’s delay in ruling on his post-conviction petition. We held oral argument for this

appeal on Wednesday, May 28, 2014. The Friday before argument, May 23, 2014, the

state trial court issued a three-page decision denying Monegain’s petition for postconviction relief. In that decision, the state trial court rejected Monegain’s arguments of

ineffective assistance of counsel, malicious prosecution, and judicial bias. As discussed

below, because the state trial court delay has ended and the State provides a viable

option for relief by appeal to the Indiana appellate court, we affirm the district court’s

dismissal of Monegain’s habeas petition without prejudice.

II.

On appeal, Monegain argues that he is excused from exhausting his state court

remedies. Ordinarily, before seeking federal habeas relief a petitioner must raise his

4

(...continued) 3

certificate of appealability. 

 Initially, the government argues that this court lacks jurisdiction over 4

Monegain’s appeal because the district court had denied his petition for habeas relief

without prejudice. However, “[t]here is no general rule that dismissals without

prejudice are nonfinal orders and therefore nonappealale under 28 U.S.C. § 1291.”

Schering-Plough Healthcare Prod., Inc. v. Schwarz Parma, Inc., 586 F.3d 500, 507 (7th Cir.

2009). Rather, “when the case does end in the district court, the dismissal is ripe for

appeal even if a similar case may be filed in the future because the dismissal was

without prejudice.” Id. Conversely, when a dismissal without prejudice can be

(continued...)
No. 13-1748 Page 5

federal claims in state court. Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013). However,

under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner need

not exhaust his state court remedies if “circumstances exist that render such process

ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b). 

Monegain argues that such circumstances exist in his case because his petition

for post-conviction relief was “unjustifiably” stalled in the state trial court for an

“inordinate” amount of time—from February 29, 2012, until May 23, 2014. Accordingly,

Monegain argues he is excused from exhausting his state court remedies. See Jackson v.

Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (holding, pre-AEDPA, that a petitioner is

excused from exhausting state court remedies if the delay is “inordinate” and

“unjustifiable”). However, because the state trial court has now issued its decision, the

impediment to Monegain obtaining review in the Indiana state courts has been

removed and the current circumstances of this case do not render the state process

ineffective. See Vreeland v. Davis, 543 Fed. App. 739, 742 (10th Cir. 2013) (rejecting the

petitioner’s argument that his failure to exhaust should be excused because of the delay

in his direct appeal because the delay at the court of appeals “is over”); Slater v.

Chatman, 147 Fed. App. 959, 960 (11th Cir. 2005) (holding that even after a sixteenmonth delay in the state court, “[g]iven that the state courts are now moving forward

with [the petitioner’s] direct appeal, we cannot say that ‘there is an absence of available

State corrective process[ ] or [that] circumstances exist that render such process

ineffective to protect the rights of the applicant’”) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)-

(ii))). Cf. Hughes v. Stafford, 780 F.2d 1580, 1581–82 (11th Cir. 1986) (holding under preAEDPA habeas statute that petitioner was not excused from the exhaustion requirement

because “[a]lthough the eight-year delay in the state’s ruling on Hughes’ habeas corpus

petition should not have occurred, the state court nonetheless acted on the merits with

(...continued) 4

“immediately curable,” such as through an amended complaint that elaborates on or

changes allegations, such a decision would not be final. Id. In this case, the district

court’s dismissal without prejudice is not “immediately curable,” and the question

presented for appeal—whether Monegain is excused from his duty to exhaust his state

court remedies—is ripe for review. See, e.g., Sceifers v. Trigg, 46 F.3d 701, 702 (7th Cir.

1995) (exercising jurisdiction over the petitioner’s appeal which argued an inordinate

delay excused his obligation to exhaust state remedies and which challenged the district

court’s dismissal of his petition for habeas relief, without prejudice).
No. 13-1748 Page 6

prompt speed when Hughes asked for a ruling and there is nothing to indicate he

would not have received an expeditious handling of his case by the Georgia Supreme

Court”). 

Comity demands that we give “states the first opportunity to address and correct

alleged violations of a petitioner’s federal rights.” Liberman v. Thomas, 505 F.3d 665, 669

(7th Cir. 2007). As the Supreme Court long ago explained, “in the light of the relations

existing, under our system of government, between the judicial tribunals of the Union

and of the States, and in recognition of the fact that the public good requires that those

relations be not disturbed by unnecessary conflict between courts equally bound to

guard and protect rights secured by the [C]onstitution,” a habeas petitioner must first

exhaust his state court remedies. SKS & Assoc., Inc. v. Dart, 619 F.3d 674, 679 n.4 (7th Cir.

2010) (quoting Ex Parte Royall, 117 U.S. 241, 251 (1886)). And because “the delay has

come to a close, the comity concerns underlying the exhaustion requirement compel the

federal courts to allow the state litigation to run its course.” Vreeland, 543 Fed. App. at

742. Accordingly, in this case, Monegain must first give the Indiana appellate courts an

opportunity to pass on the federal constitutional question. Once Monegain exhausts his

state court remedies, he may timely re-file his § 2254 petition. We AFFIRM.