UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOSHUA REBEL HAYS, )

)

Petitioner, )

) CAUSE NO. 3:15CV170-PPS 

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Joshua Rebel Hays, a pro se prisoner, filed a habeas corpus petition under 28 U.S.C.

§ 2254 challenging his 2015 criminal trespass conviction in Elkhart 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, a jury found Hays guilty of criminal trespass in Cause No.

20D06-1403-CM-0425. (Id. at 1.) On March 25, 2015, he was sentenced to 1 year in prison.

(Id.) The Elkhart Superior Court docket reflects that Hays is currently pursuing a direct

appeal. Moreover, Hays admits he has not pursued state post-conviction relief. (Id.) 

Giving the petition liberal construction, he alleges actual innocence as well as other due

process violations. (Id. at 2-6.) He acknowledges that he has not yet presented either of

these claims to the Indiana Supreme Court. (Id.) 

Hays’ 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 and Elkhart Superior Court docket that Hays has not yet presented his

claims in one complete round of state review, including to 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.”

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

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

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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.

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

resolve the issue. Id. at 485. 

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As explained above, Hays 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 jurists of reason could debate the

correctness of my procedural ruling or find a reason to encourage Hays 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: May 18, 2015

 /s/ Philip P. Simon 

Philip P. Simon, Chief Judge

United States District Court

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