United States District Court

Northern District of Indiana 

TROY LEWIS SWINDEMAN, )

)

Petitioner, )

)

vs. ) Civil Action No. 3:15-CV-562 JVB

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Troy Lewis Swindeman, a pro se prisoner, filed a habeas corpus petition under 28 U.S.C.

§ 2254 challenging his October 16, 2015, conviction for driving on a suspended license in

Elkhart County. (DE 1.) The court is 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, Swindeman pled guilty to driving with a suspended license. He

has not pursued a direct appeal to the Indiana Court of Appeals or sought transfer to the Indiana

Supreme Court. Nor has he pursued a state post-conviction petition. Nevertheless, he seeks

habeas relief here.

Swindeman’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, the court 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). Simply put,

Swindeman must appeal his conviction through the Indiana Court of Appeals and then ask the

Indiana Supreme Court to take the case. This he has not done. Clearly, and by his own

admission, Swindeman has not presented any of his claims to the Indiana Supreme Court, as

required. Therefore he has not exhausted his State court remedies and this habeas corpus petition

must be dismissed without prejudice. If, after he has ultimately presented his claims to the

Indiana Supreme Court, he has not yet obtained relief, then he may return to this court and file a

new habeas corpus petition.

When dismissing a habeas corpus petition because it is unexhausted, “[a] district court [is

required] to consider whether a stay is appropriate [because] the dismissal would effectively end

any chance at federal habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006).

Since Swindeman was convicted in October 2015, only days of the 1-year period of limitation

set forth in 28 U.S.C. § 2244(d) have expired. Thus, the dismissal of this petition will not end his

chance of federal review after he exhausts his State court remedies.

As a final matter, pursuant to Section 2254 Habeas Corpus Rule 11, the court must

consider whether to grant or deny a certificate of appealability. To obtain a certificate of

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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 the court dismisses 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. 

As explained above, Swindeman 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. Moreover, nothing before the court suggests that

jurists of reason could debate the correctness of this procedural ruling or find a reason to

encourage Swindeman 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. 

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SO ORDERED on December 10, 2015.

 s/ Joseph S. Van Bokkelen 

Joseph S. Van Bokkelen

United States District Judge

Hammond Division

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