IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DAMIONNE M. NICHOLS, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:15-CV-027

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition under 28

U.S.C. Paragraph 2254 for Writ of Habeas Corpus received from

Damionne M. Nichols, a pro se prisoner, on January 20, 2015. The

petition (DE 1) challenges his conviction for Possession of a

Firearm by a Serious Violent Felon and 16 year sentence on

February 28, 2012, by the Allen Superior Court under cause number

02D06-1101-FB-11. For the reasons set forth below, the Court DENIES

the habeas corpus petition and DENIES a certificate of

appealability. 

BACKGROUND

Following his conviction, Nichols filed a direct appeal with

the Court of Appeals of Indiana, but he did not petition for

transfer to the Indiana Supreme Court. DE 6-2. After his postconviction relief petition was denied, he filed a notice of appeal,

but he did not file an appellant’s brief. DE 6-6. As a result, his
appeal was dismissed by the Court of Appeals of Indiana and he did

not file a petition to transfer challenging that ruling.

DISCUSSION

The respondent argues that the petition is procedurally

defaulted. “To avoid procedural default, a habeas petitioner must

fully and fairly present his federal claims to the state courts.”

Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006) (quotation

marks and citation omitted). 

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). 

The State court records show that Nichols did not present any

of his grounds to the Indiana Supreme Court. Nichols does not

assert that he did. Rather he argues that his “appeal was

improperly disposed of due to a refusal of [the Court of Appeals of

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Indiana] to acknowledge their failure to timely notify Petitioner

of pertinent deadlines caused by their miscommunication.” DE 1 at

5. In sum, he is simply arguing that he did not know the procedural

rules which explained when he was required to file his brief.

However, “it is well established in this Circuit that circumstances

such as youth, lack of education, and illiteracy are not external

impediments within the context of excusing procedural default.”

Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). Indeed,

Harris went on to hold that neither mental retardation, mental

deficiencies, nor mental illness demonstrate cause to excuse

procedural default. Therefore, Nichols’ ignorance of the law does

not excuse procedural default. Because his claims are procedurally

defaulted, this court cannot consider them. 

CONCLUSION

For the reasons set forth above, the Court DENIES the habeas

corpus petition and DENIES a certificate of appealability. 

DATED: April 15, 2016 /s/RUDY LOZANO, Judge

United State District Court

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