UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

LEROY HOUCHIN II, )

)

Petitioner, )

) CAUSE NO. 3:15-CV-029 PS 

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Leroy Houchin II, a pro se prisoner, filed a habeas corpus petition under 28 U.S.C.

§ 2254 challenging his 2014 drug conviction in Kosciusko County. (DE 1.) I am obligated

to review the petition and 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.

According to the petition, Houchin pled guilty to possession of a controlled

substance in Cause No. 43C01-1406-FB-424. (Id. at 1.) On December 22, 2014, he was

sentenced to 3 years in prison. (Id.) He is currently pursuing a direct appeal, and he has not

pursued state post-conviction relief. (Id.) On January 13, 2015, he tendered his federal

petition to prison officials for mailing. (Id. at 4.) Giving the petition liberal construction, he

alleges two claims: the police conducted an unlawful, warrantless search and his right to

counsel was violated when police continued to interrogate him after he requested a lawyer.

(Id. at 3.) He acknowledges that he has not yet presented either of these claims to the

Indiana Supreme Court. (Id.) 
Houchin’s petition is governed by the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a

federal court to issue a writ of habeas corpus on behalf of a person in custody pursuant to

a state court judgment “on the ground that he is in custody in violation of the Constitution

or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Before considering the merits

of a habeas petition, however, I must ensure that the petitioner has exhausted all available

remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025

(7th Cir. 2004). As the Seventh Circuit has explained:

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. . . . 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. 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.

Lewis, 390 F.3d at 1025-26 (internal citations and quotation marks omitted). Here, it is clear

from the petition that Houchin has not yet presented his claims in one complete round of

state review, including with the Indiana Supreme Court. Until he does so, he cannot obtain

federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). Accordingly, the petition is subject to

dismissal. 

I should consider staying rather than dismissing a petition containing unexhausted

claims when the one-year statute of limitations under AEDPA has run or is close to

running, such that “dismissal would effectively end any chance at federal habeas review.”

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Dolis v. Chambers, 454 F.3d 721, 725 (2006). There is no such danger here. Houchin’s

conviction is not yet final, as it is pending with the Indiana Court of Appeals. Once his

conviction becomes final, he has one year from that date to pursue federal habeas relief,

and the deadline will be tolled during the time he has a properly filed state post-conviction

petition pending. See 28 U.S.C. § 2244(d)(1), (2). If he acts diligently, he should have no

difficulty returning to federal court after he exhausts his state court remedies. Therefore,

the petition will be dismissed, but the dismissal will be without prejudice to his right to file

a new petition after he exhausts his state court remedies. 

Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, I must either

issue or deny a certificate of appealability in all cases where I enter a final order adverse

to the petitioner. To obtain a certificate of appealability, the petitioner must make a

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

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) (internal

quote marks and citation omitted). When I have dismissed the petitioner’s claim on

procedural grounds, the determination of whether a certificate of appealability should

issue has two components. Id. at 484–85. First, the petitioner must show that reasonable

jurists would find it debatable whether the district court was correct in its procedural

ruling. Id. at 484. Next, the petitioner must show that reasonable jurists would find it

debatable whether the petition states a valid claim for the denial of a constitutional right.

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Id. Each is a threshold inquiry; thus, only one component needs to be addressed if it will

resolve the issue. Id. at 485. 

As explained above, Houchin has not yet exhausted his state court remedies, and

so his petition must be dismissed. A dismissal without prejudice for failure to exhaust state

court remedies is not an appealable order, unless the petitioner would be time-barred or

otherwise precluded from returning to federal court after exhausting his state court

remedies. Dolis, 454 F.3d at 723; Moore v. Mote, 368 F.3d 754, 756 (7th Cir. 2004). That issue

is not presented here, and so the dismissal order would not be appealable. Aside from this

procedural barrier, nothing before me suggests that jurists of reason could debate the

correctness of my procedural ruling or find a reason to encourage Houchin to proceed

further without first exhausting his state court remedies.

For these reasons, the petition (DE 1) is DISMISSED WITHOUT PREJUDICE

pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and the petitioner is

DENIED a certificate of appealability. 

SO ORDERED.

ENTERED: February 2, 2015

s/Philip P. Simon 

Philip P. Simon, Chief Judge

United States District Court

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