UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CLARENCE D. FISCHER, )

)

Petitioner, )

) Case No. 3:13-CV-015-JVB

v. )

)

SHERIFF, )

)

Respondent. )

OPINION AND ORDER

Clarence D. Fischer, a pro se prisoner, filed this habeas corpus petition attempting to

challenge his conviction and eighteen-month sentence for being a habitual traffic violator

imposed by the Miami Circuit Court under cause number 52C01-1210-FD-74. Before

considering the merits of a habeas corpus petition, the court must ensure that the petitioner has

exhausted his claims in the state courts as required by 28 U.S.C. § 2254(b)(1)(A). 

Inherent in the habeas petitioner’s obligation to exhaust his state court

remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is

the duty to fairly present his federal claims to the state courts. Baldwin v. Reese,

541 U.S. 27 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Picard

v. Connor, 404 U.S. 270, 275 (1971). “Only if the state courts have had the first

opportunity to hear the claim sought to be vindicated in the federal habeas

proceeding does it make sense to speak of the exhaustion of state remedies.” Id. at

276. Fair presentment in turn requires the petitioner to assert his federal claim

through one complete round of state-court review, either on direct appeal of his

conviction or in post-conviction proceedings. Boerckel, 526 U.S. at 845. This

means that the petitioner must raise the issue at each and every level in the state

court system, including levels at which review is discretionary rather than

mandatory. Ibid.

Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004) (parallel citations omitted). 

Here, Fischer was only sentenced on December 14, 2012, and he has not even attempted

to appeal any of his claims to the Indiana Supreme Court. Thus, he has not exhausted any of his
claims. Because his claims are unexhausted, this case will be dismissed without prejudice so that

he can present them in state court before seeking federal collateral review. 

When dismissing a habeas corpus petition because it is unexhausted, “[a] district court [is

required] to consider whether a stay is appropriate under circumstances . . . where the dismissal

would effectively end any chance at federal habeas review.” Dolis v. Chambers, 454 F.3d 721,

725 (7th Cir. 2006). Here, Fischer was sentenced less than a month ago. The deadline for filing a

direct appeal has not even expired. See Indiana Rule of Criminal Procedure 19 and Indiana Rule

of Appellate Procedure 9.A.(1) (a notice of appeal must be filed within 30 days). Therefore none

of the one-year period of limitation set forth in 28 U.S.C. § 2244(d) has expired. Thus, the

dismissal of this petition will not end Fischer’s chance of federal review after he exhausts his

State court remedies.

As a final matter, pursuant to Section 2254 Habeas Corpus Rule 11, the court must

consider whether to grant or deny a certificate of appealability. To obtain a certificate of

appealability when the court dismisses a petition on procedural grounds, the petitioner must

show that reasonable jurists would find it debatable (1) whether the court was correct in its

procedural ruling and (2) whether the petition states a valid claim for denial of a constitutional

right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). As previously explained, Fischer has not

exhausted any claims and a stay is unnecessary. Because there is no basis for finding that jurists

of reason would debate the correctness of this procedural ruling or find a reason to encourage

him to proceed further, a certificate of appealability must be denied. 

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For the foregoing reasons the court DISMISSES this case WITHOUT PREJUDICE

pursuant to Section 2254 Habeas Corpus Rule 4 because the claims are unexhausted and

DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11.

SO ORDERED on January 9, 2013.

 S/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN

UNITED STATES DISTRICT JUDGE

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