UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MICHAEL A. MAXIE, )

)

Petitioner, )

) CAUSE NO. 3:13-CV-1232-TLS

v. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Michael A. Maxie, a prisoner proceeding pro se, has filed several documents in this

closed case. (ECF Nos. 18, 19, 21, 22, 23, 24, 25, 26.) The Court dismissed Maxie’s habeas

petition without prejudice on March 20, 2013, after he failed to pay the filing fee as ordered by

the Court. (ECF No. 16.) On April 21, 2013, he filed several documents evincing a desire to

appeal the court’s judgment, including a motion for leave to appeal in forma pauperis, a

docketing statement, and a motion for release pending appeal. (See ECF Nos. 22, 24, 25.) As a

procedural matter, Maxie did not file a formal notice of appeal. However, given his pro se status,

the Court will construe his docketing statement, which contains all the necessary information, as

his notice of appeal. See Smith v. Grams, 565 F.3d 1037, 1041–43 (7th Cir. 2009); Wells v.

Ryker, 591 F.3d 562, 564-65 (7th Cir. 2010). Accordingly, the Clerk will be directed to

separately docket the docketing statement as a notice of appeal, and to process it accordingly.

MOTION FOR RECONSIDERATION

Maxie also filed a document which the court construes as a request for reconsideration of

the final judgment. (ECF No 21.) Ordinarily, a notice of appeal divests the court of jurisdiction

over the case. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). However, if
a party files a timely motion for relief from judgment pursuant to Federal Rule of Civil

Procedure 59 or 60, the time for appealing does not begin to run until the court disposes of that

motion. Fed. R. App. P. 4(a)(4)(A). When a party files a notice of appeal after the judgment but

before the court rules on the motion, the notice of appeal becomes effective when the order

disposing of the motion is entered. Fed. R. App. P. 4(a)(4)(B). Here, Maxie tendered his motion

to reconsider for mailing within 28 days of the judgment, and before he filed his appeal

documents. (See ECF Nos. 17, 21.) Accordingly, the Court has jurisdiction to entertain the

motion. See Fed. R. App. P. 4(a)(4)(B)(i).

Turning to the merits, the Court finds no basis to alter or otherwise disturb the judgment.

Maxie appears to argue that the Court should have granted him in forma pauperis status because

he does not have sufficient funds to pay the $5.00 filing fee.1

 The record demonstrates otherwise.

In his original motion for leave to proceed in forma pauperis, Maxie attached inmate trust fund

ledgers showing that his average monthly deposits for the period May 2013 to November 2013

were $43.26. (ECF No. 5.) In his present filing, he submits ledgers from a slightly different

period, and they reflect that his average monthly deposits for the period June 2013 to December

2013 were $27.59. (ECF No. 21 at 7-9.) In either case, these filings reflect that Maxie had

sufficient funds available to pay the $5.00 filing fee. 

Maxie asserts that he no longer has sufficient funds in his account, but a review of his

ledgers indicates that he spent money on phone calls, copying costs, and commissary purchases

during this period. (See ECF Nos. 5, 21.) Furthermore, court records reflect that he filed five

1 Within one of his filings, Maxie appears to claim that some named “Myron Maxie” paid the $5.00 filing

fee on his behalf. (See ECF No. 21 at 2.) The Clerk has diligently searched its financial records and has no record of

any such payment. If Maxie believes this is in error and has documentation to reflect the payment, he should

promptly submit it to the Court.

2
civil rights lawsuits in this court between September 2013 and January 2014.2 See Maxie v.

Levenhagen, et al., No. 2:14-CV-008 (N.D. Ind. filed Jan. 9, 2014); Maxie v. Wilson, et al., No.

3:13-CV-1277 (N.D. Ind. filed Nov. 29, 2013); Maxie v. Levenhagen, et al., No. 3:13-CV-1279

(N.D. Ind. filed Nov. 29, 2013); Maxie v. Bruemmer, et al., No. 3:13-CV-1280 (N.D. Ind. filed

Nov. 29, 2013); Maxie v. Wilson, et al., No. 3:13-CV-1021 (N.D. Ind. filed Sept. 20, 2013.) He

made various payments of the initial partial filing fees assessed in those cases (totaling

approximately $40.22) between February 2014 and April 2014. See Maxie, No. 3:13-CV-1277

(payment of $6.40 on Apr. 7, 2014); Maxie No. 3:13-CV-1279 (payment of $8.14 on Feb. 24,

2014); Maxie, No. 3:13-CV-1280 (payment of $8.14 on Feb. 24, 2014); Maxie, No. 3:13-CV1021 (payment of $2.94 on Mar. 24, 2014, and payment of $6.40 on Apr. 7, 2014). 

Furthermore, Maxie opted to refile his petition under a new cause number on April 24,

2014, and he tendered payment of the $5.00 fee along with the petition. See Maxie v.

Superintendent, No. 3:14-CV-1444 (N.D. Ind. filed Apr. 24, 2014). For these reasons, the Court

concludes that Maxie had sufficient funds available to pay the $5.00 filing fee while this case

was pending. The fact that he chose to deplete his account with other expenditures does not

mean this Court’s ruling was in error. Accordingly, the Motion for Reconsideration will be

denied. Maxie also filed an amended habeas petition (ECF No. 18) and a motion seeking

immediate judgment in his favor (ECF No. 19), but the Court has no authority to act on these

2 The court notes that Maxie was previously restricted from filing civil lawsuits due to his abuse of the

judicial process; he filed three successive cases under 42 U.S.C. § 1983 asserting the same claim against the same

defendant, despite a warning from the court that this was improper. See Maxie v. Wal-Mart Store, No. 3:10-CV-515

(N.D. Ind. order dated Feb. 10, 2011). The filing restriction was lifted by the court in May 2013 at Maxie’s request.

Id., ECF No. 22.

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filings, since the case has been closed and is presently on appeal. Griggs, 459 U.S. at 58. 

MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

 Maxie has filed various motions pertaining to his appeal. He first moves for leave to

proceed in forma pauperis on appeal. (ECF No. 22.) “An appeal may not be taken in forma

pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. §

1915(a)(3). In identifying his issues on appeal, Maxie asserts the merits of his claims raised in

his habeas petition. (ECF No. 23 at 1.) However, the Court did not reach the merits of Maxie’s

petition. Instead, his Petition was dismissed without prejudice for failure to pay the filing fee. He

does not present any arguable basis for overturning the Court’s resolution of the Petition. As

outlined above, Maxie’s filings in this case demonstrate that he was capable of paying the $5.00

filing fee. If he had done so, he could have obtained review of his case on the merits. Indeed,

Maxie has now refiled his Petition, and tendered payment of the $5.00 filing fee. Maxie, No.

3:14-CV-1444. In light of the record, the Court declines to permit him to proceed in forma

pauperis on appeal. See Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000) (appeal is not

taken in good faith where “no reasonable person could suppose that the appeal has some

merit.”).

As a related matter, because Maxie is appealing the Court’s judgment, the Court must

consider whether to grant him a certificate of appealability. 28 U.S.C. § 2253(c); Rule 11 of the

Rules Governing Section 2254 Cases. To obtain a certificate of appealability, the petitioner must

make a substantial showing of the denial of a constitutional right by establishing “that reasonable

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jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the

petition is resolved on procedural grounds, to obtain a certificate of appealability the petitioner

must establish two components: that reasonable jurists would find it debatable whether the court

was correct in its procedural ruling, and that the petition states a valid claim for denial of a

constitutional right. Id. Each is a threshold inquiry, and therefore, the court need only address

one prong if it is dispositive. Id. For the reasons fully explained above, Maxie’s Petition was

properly dismissed for failure to pay the filing fee. The Court finds no basis to conclude that

reasonable jurists would debate this outcome or find a reason to encourage Maxie to proceed

further. Accordingly, the Court declines to issue him a certificate of appealability.

MOTION FOR RELEASE FROM CUSTODY

Finally, Maxie filed a motion requesting that the court release him “on a personal

recognizance bond” while his appeal is pending.3

 (ECF No. 24.) In habeas cases, federal district

judges have “inherent power to admit applicants to bail pending the decision of their cases,” but

it is a power to be exercised “very sparingly.” Cherek v. United States, 767 F.2d 335, 337 (7th

Cir. 1985). The U.S. Court of Appeals for the Seventh Circuit explained:

The reasons for parsimonious exercise of the power should be obvious. A defendant

whose conviction has been affirmed on appeal (or who waived his right of appeal,

3 Federal Rule of Appellate Procedure 23 governs requests for release from custody pending review of a

decision in a federal habeas case. The rule provides in pertinent part that “[w]hile a decision not to release a prisoner

is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge

or justice of either court may order that the prisoner be. . . released on personal recognizance, with or without

surety.” Fed. R. App. P. 23(b)(3).

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as by pleading guilty, or by foregoing appeal after being convicted following a trial)

is unlikely to have been convicted unjustly; hence the case for bail pending

resolution of his postconviction proceeding is even weaker than the case for bail

pending appeal. And the interest in the finality of criminal proceedings is poorly

served by deferring execution of sentence till long after the defendant has been

convicted.

Id. Thus, in order to obtain release pending a decision on a habeas petition, the petitioner must

show “not only a substantial federal claim that presents not merely a clear case on the law, but a

clear, and readily evident, case on the facts.” Pethtel v. Att’y Gen. of Ind., 704 F. Supp. 166, 169

(N.D. Ind. 1989). 

Here, Maxie’s motion is minimal and focuses mainly on equitable considerations,

including his desire to be released so he can be with his son. His sole argument pertaining to the

merits is his statement that “Plaintiff Michael A. Maxie believe[s] that he have a likelihood of

prevailing” on the merits. (ECF No. 24 at 1–2.) Furthermore, because Maxie failed to resolve the

threshold issue of the filing fee, the Respondent was not ordered to file a return to the Petition,

nor were any state court records filed. Nevertheless, based on a review of the Petition and the

limited record before the Court, Maxie has not made the type of extraordinary showing

necessary to obtain release from custody pending appeal. 

Maxie is serving an eight-year sentence for battery on a pregnant person and interference

with reporting of a crime. (ECF No. 18-1 at 30.) On direct appeal, the state appellate court set

forth the following facts underlying Maxie’s conviction, which are presumed correct under 28

U.S.C. § 2254(e)(1):

In 2007, Procela Hummer began living with Maxie in an Elkhart County apartment

complex. Hummer became pregnant by Maxie in February of 2008.

On June 14, 2008, at approximately 3 p.m., Maxie left the Elkhart County apartment

to go to South Bend. Sometime later, a friend called Hummer and invited her to the

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friend’s son’s graduation party. Hummer called Maxie, who told Hummer not to be

gone long. Hummer went to the party with friends, and she called Maxie two times

during the party. However, Maxie did not answer. Hummer left the party at

approximately 9 p.m., checked her phone, and learned that Maxie had called her six

times and left three messages. Hummer “got scared” and listened to the messages,

in which Maxie informed her that she needed to be home at a certain time and

accused her of flirting with men at the party. Hummer considered the messages left

by Maxie to be “nasty.”

When Hummer arrived at the apartment, she became “terrified” when she saw that

Maxie was home. As Hummer entered the apartment, Maxie approached her, pointed

his finger in her face, and told her she needed to be at home. Hummer entered the

bedroom and placed her cell phone and keys on a bedroom table. Maxie followed her

into the bedroom, “yelling” and “cussing” at her. Maxie grabbed Hummer’s cell

phone and keys and placed them in his pocket. Maxie then approached Hummer and

put his hands on her neck to the point that Hummer could “hardly breathe.” Maxie

pushed Hummer’s head into the bed’s headboard, causing her physical pain. Maxie

then grabbed the land line phone and took it into the living room.

Hummer, who was crying, left the bedroom and sat down on a couch in the living

room. Fearing that a neighbor would hear Hummer crying, Maxie grabbed

Hummer’s mouth and “squished it hard,” causing cuts inside her mouth and on her

bottom lip. Hummer was unable to call for help because Maxie had taken the phones.

Hummer fell asleep and woke up the next morning at approximately 9 a.m. Maxie

would not allow her to leave the apartment, but around 5 p.m. he received a phone

call, placed Hummer’s car keys on a table, and stepped outside on the patio to take

the call. Hummer immediately grabbed her coat, purse, and the car keys and ran

outside to her vehicle.

As Hummer drove out of the parking lot and down the street, she saw a marked

Elkhart Police Department vehicle. She flagged down the officer driving the vehicle,

Police Corporal Christopher Grathen, who stopped to investigate. Corporal Grathen

observed that Hummer was “very upset, borderline hysterical, and crying.”

Hummer told Corporal Grathen that Maxie had pushed her head into a headboard and

squeezed her mouth on the previous night. She also told him that she couldn’t call

for help because Maxie had removed the phones. Corporal Grathen had Hummer

drive to the police station, where she prepared a statement and an officer took

pictures of her injuries.

On December 30, 2008, Maxie was charged with battery on a pregnant woman,

domestic battery, and interference with reporting a crime. At the initial hearing,

Maxie informed the trial court that he could not afford an attorney and asked the trial

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court to appoint an attorney for him. The trial court appointed the Elkhart County

Public Defender’s office to represent Maxie, and on April 3, 2009, Elkhart County

Public Defender Peter D. Todd entered an appearance on Maxie’s behalf. However,

Maxie later secured private representation and attorney Rod Sniadecki entered an

appearance on July27, 2009. Sniadecki subsequently was disbarred and the trial court

vacated his appearance on Maxie’s behalf on May 6, 2010.

On June 22, 2010, Elkhart County Public Defender Michelle Voirol entered an

appearance on Maxie’s behalf. At an August 16, 2010 hearing, Maxie informed the

trial court that he was dissatisfied with Voirol’s representation, stating that she was

incompetent and had a conflict of interest. He also stated that he would attempt to

hire private counsel. Voirol indicated that she and her client disagreed on whether

he had an Indiana Rules of Criminal Procedure 4 claim. The trial court informed

Maxie that it did not control the Public Defender’s Office’s appointments but that

Maxie was free to procure private counsel.

At a September 20, 2010 hearing, Maxie again claimed that he was dissatisfied with

Voirol’s representation, but he later stated through Voirol that he wanted to proceed

to trial. Voirol informed the court that Maxie was abusive, controlling and

threatening, but she did not make a request to withdraw her appearance. The trial

court again informed Maxie that he was free to hire private counsel but another

public defender would not be assigned by the court to the case because “we’ve been

around this block before.”

At a November 11, 2010 hearing, the trial court set a trial date of January 11, 2011.

Maxie made no objection to the setting of the trial date or the competence of counsel.

On December 17, 2010, Voirol filed a motion to withdraw after Maxie missed an

appointment because she could not “adequately represent [Maxie] without his

cooperation in trial preparation.” At a January 4, 2011 hearing on Voirol’s motion,

Maxie requested that Todd be reappointed, a request which the trial court denied.

After the hearing, the trial court denied the motion to withdraw.

A jury trial was held on January 11-12, 2011. The jury reached an impasse, and the

trial court was forced to declare a mistrial. A second jury trial was held in February

of 2011, and the jury found Maxie guilty of all the charges. Voirol represented Maxie

at both trials. On February 28, 2011, the trial court vacated the domestic battery

conviction and sentenced Maxie to an aggregate term of nine years, with one year

suspended to probation.

Maxie v. State, No. 20A03-1103-CR-117, slip op. at *2–6 (Ind. Ct. App. Nov. 1, 2011) (internal

citations omitted). In imposing the sentence, the court noted that Maxie had an extensive

criminal record with at least 16 misdemeanor convictions, including convictions for domestic

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battery and battery. Id. at *10–11. Maxie unsuccessfully pursued a direct appeal. Id. He

thereafter filed a post-conviction petition, which was denied. (ECF No. 18 at 1.) He did not

pursue an appeal to either the Indiana Court of Appeals or the Indiana Supreme Court in the

post-conviction proceedings. (Id. at 1–2.) 

He then sought federal habeas relief. In his Petition, Maxie raises four claims: his

appellate counsel was ineffective; his trial counsel was ineffective; his double jeopardy rights

were violated; and a claim of “prosecutorial vindictiveness.” (ECF No. 18 at 3–14.) His first

claim is confusing, but he appears to claim that his appellate counsel was ineffective in failing to

argue that trial counsel was deficient for not objecting to the admission of certain evidence. (ECF

No. 18 at 4–6.) Upon review, the Court cannot discern a “clear” and “readily evident” violation

of Maxie’s Sixth Amendment rights. Instead, it would require a careful parsing of the complete

record to determine whether the state court’s rejection of this claim constituted an unreasonable

application of Strickland v. Washington, 466 U.S. 668 (1984). See Harrington v. Richter, 

—U.S.—, 131 S. Ct. 770, 786 (2011) (observing that in light of the deferential standard of

review in habeas cases, “the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.”). Importantly, to ultimately prevail on his claim, Maxie must show that an

objection by counsel would have been sustained under Indiana law. See Stone v. Farley, 86 F.3d

712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal, does

not constitute ineffective assistance of counsel.”). Here, Maxie does not offer a clear explanation

of why he believes the evidence was objectionable.

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Furthermore, it appears Maxie may not have properly exhausted this claim in one

complete round of state review. See Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004) (to

properly exhaust habeas 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”). Maxie did not

raise this claim on direct appeal, see Maxie, No. 20A3-1103-CR-117, and he acknowledges that

he did not pursue an appeal in the post-conviction proceedings. (ECF No. 18 at 1.) He asserts

that he raised this claim in a “motion for dismissal and reverse of conviction” filed with the

Indiana Supreme Court following the denial of post-conviction review. (ECF No. 18 at 9.)

However, it is not clear that this was the appropriate procedural manner to raise his claim for the

first time; his failure to present this claim to the state court in accordance with state procedural

rules would result in a procedural default. Richardson v. Lemke, 745 F.3d 258 (7th Cir. 2014). If

he cannot demonstrate an adequate basis for setting aside the default, which he has not attempted

to do in his present filings, this claim could not be reached on the merits. See McQuiggin v.

Perkins, —U.S.—, 133 S. Ct. 1924, 1931-33 (2013); House v. Bell, 547 U.S. 518, 536 (2006).

Maxie has not demonstrated an entitlement to release from custody based on this claim.

Maxie’s second claim pertains to the trial court’s refusal to permit Voirol to withdraw.

Like his first claim, there is nothing “clear” or “readily evident” about his right to relief. Again it

would require a careful review of entire record, including documents that have not been

submitted due to Maxie’s failure to pay the filing fee, to determine whether the state court’s

rejection of this claim constituted an unreasonable application of Strickland. Upon preliminary

review, however, there appears to be nothing unreasonable about the state court’s ruling. The

record shows the trial court declined to permit Maxie to obtain new counsel because the trial was

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imminent and the case had been pending more than two years. Maxie, No. 20A03-1103-CR-117,

slip op. at *7–8. The appellate court found no evidence of a breakdown in their relationship, and

noted that Maxie failed to assert any objection or argument about Voirol’s representation after

the motion was denied, even though he was given an opportunity to speak. Id. For these reasons,

Maxie has not demonstrated an entitlement to release based on this claim. 

In a convoluted double jeopardy claim, Maxie does not demonstrate that a “clear” and

“readily evident” double jeopardy violation occurred. His complaint appears to be that he was

tried twice on the same charges, but double jeopardy ordinarily does not preclude retrial after a

mistrial is declared, unless the mistrial was caused by intentional misconduct by the prosecution.

Oregon v. Kennedy, 456 U.S. 667, 679 (1982). Maxie submits a transcript showing that his

counsel agreed to the mistrial (ECF No. 18-1 at 56), and he has not argued or demonstrated that

his case falls within the limited exception stated above. Nor is it clear that Maxie properly

presented this claim in one complete round of state review. See Lewis, 390 F.3d at 1025. Again,

he states that he presented this claim in a “motion for dismissal and reverse of conviction” filed

with the Indiana Supreme Court after the post-conviction proceedings concluded. It is doubtful

this is the proper state vehicle for asserting a double jeopardy claim for the first time. Maxie has

not demonstrated an entitlement to release based on this claim. Similarly, as to his final claim,

prosecutorial vindictiveness, he acknowledges that he did not present this claim on direct appeal

or on post-conviction review, or in any other state filing, which would mean the claim is

procedurally default. Lewis, 390 F.3d at 1025. He does not articulate any grounds for excusing

the default. 

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Therefore, Maxie has failed to satisfy the exacting standard for obtaining release from

custody. The Court does not prejudge the ultimate merits of Maxie’s claims should further

proceedings occur at a later date; however, based on the present record, Maxie has not

demonstrated an entitlement to release pending appeal. Therefore, the Motion will be denied. 

CONCLUSION

For the reasons set forth above, the Clerk is DIRECTED to docket the Petitioner’s

docketing statement (ECF No. 25) as a notice of appeal. The Petitioner’s Motions (ECF Nos. 19,

21, 22, 24) are DENIED. The Petitioner is DENIED a certificate of appealability.

SO ORDERED on May 1, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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