UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHRISTOPHER LEE BUTLER, )

)

Petitioner, )

)

v. ) No. 1:12 CV 7 

)

ALLEN COUNTY JAIL )

COMMANDER, )

)

Respondent. )

OPINION AND ORDER

Petitioner Christopher Lee Butler, a prisoner confined at the Allen County Jail,

submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging

actions by the Allen Superior Court in a criminal prosecution against him. According to

the petition, the trial court revoked his bond and then denied him bail. (DE # 1 at 4.)

The petitioner put “N/A” in the portion of the petition for date of judgment of the

conviction and the length of sentence. (Id. at 1.) He also states that he has not appealed

any of his claims to the Indiana Court of Appeals. (Id.)

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is

obligated to review a habeas corpus petition and to dismiss it if “it plainly appears from

the petition and any attached exhibits that the petitioner is not entitled to relief . . . .”

RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES. This rule provides the Court with

a gatekeeping responsibility to sift through habeas corpus petitions and dismiss those

petitions which obviously lack merit. 
It appears from the face of the petition that Mr. Butler has not yet been convicted

of the criminal charges against him. Accordingly, he is not “in custody” within the

meaning of 28 U.S.C. § 2254, and this petition is premature. A district court may not

entertain an application for writ of habeas corpus unless the petitioner is “in custody

pursuant to the judgment of a state court.” 28 U.S.C. § 2254(a) (emphasis added). A

state habeas corpus petitioner meets the statutory “in custody” requirement only if “he

is in custody pursuant to the conviction he attacks” or pursuant to another conviction

that is related to the conviction he attacks. Carter v. Procunier, 755 F.2d 1126, 1129 (5th

Cir. 1985). Because Mr. Butler has not yet been convicted of the criminal charges against

him, this court does not have jurisdiction to hear this petition.

Even if Mr. Butler had been convicted of the charges against him, his petition

establishes that he has not appealed to the Indiana Court of Appeals or the Indiana

Supreme Court, and has therefore not exhausted his state court remedies. 28 U.S.C.

§ 2254 (b)(1)(A) provides that an application for a writ of habeas corpus by a state

prisoner shall not be granted unless “the applicant has exhausted the remedies available

in the courts of the State.” To fully exhaust his state court remedies, a habeas petitioner

must seek discretionary review from the State’s highest court where that review is

normal, simple, and an established part of the State’s appellate review process.

O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999).

Failure to exhaust available state court remedies is a doctrine that is a close

cousin to the doctrine of procedural default. Perruquet v. Briley, 390 F.3d 505, 514 (7th

2
Cir. 2004); Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir. 1999). When a petitioner has

failed to exhaust his state court remedies, a federal court has the option to deny the

petition on the merits, see 28 U.S.C. § 2254(b)(2), or dismiss it without prejudice.

Perruquet, 390 F.2d at 514. Because this petition appears to be premature, the court will

dismiss it without prejudice, and Mr. Butler may refile his petition after he has been

convicted and exhausted his state court remedies.

For the foregoing reasons, the court DISMISSES this petition without prejudice

pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States

District Court. 

SO ORDERED.

Date: January 27, 2012

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT