UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ERNEST LAMONT WILLIAMS, III, )

)

Petitioner, )

) CAUSE NO. 3:15CV400-PPS 

vs. )

)

SHERIFF, )

)

Respondent. )

OPINION AND ORDER

Ernest Lamont Williams, III, a pro se prisoner, filed an amended habeas corpus

petition under 28 U.S.C. § 2254 challenging his 2015 resisting law enforcement conviction

in St. Joseph County. (DE 4.) 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, Williams pled guilty to resisting law enforcement in

Cause No. 71D02-1412-F6-365. (Id. at 1.) On March 17, 2015, he was sentenced to 1 year in

prison. (Id.) He did not pursue a direct appeal, nor has he pursued state post-conviction

relief. (Id.) On September 23, 2015, he tendered his amended federal petition to prison

officials for mailing. (Id. at 5.) Giving the petition liberal construction, he alleges that he

was denied due process when he was sent to the Indiana Department of Corrections to

serve out a prison sentence intended for the St. Joseph County Jail. (Id. at 3.) He

acknowledges that he has not yet presented this claim to the Indiana Supreme Court. (Id.) 
Williams’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 Williams has not yet presented his claim 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. Williams has one

year from the date his conviction became final 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, Williams 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 (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 other reasonable jurists could debate

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

further without first exhausting his state court remedies.

For these reasons, the amended petition (DE 4) 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: October 19, 2015

 /s/ Philip P. Simon 

Chief Judge

United States District Court

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