JANE MAGNUS-STINSON, District Judge.
Petitioner James T. Jethroe is nothing if not persistent. But persistence that does not comply with the procedural requirements necessary to obtain habeas corpus relief cannot succeed. This habeas action stems from Jethroe's fourth attempt to seek post-conviction relief from an Indiana state court on the basis of an Indiana state law issue. His first post-conviction petition was denied on the merits in 2004, but his appeal was procedurally dismissed by the Indiana Court of Appeals and he did not seek transfer with the Indiana Supreme Court. Jethroe's second and third post-conviction petitions were dismissed on the basis of res judicata in 2008. Jethroe's fourth petition for post-conviction relief was filed in 2011, and it raises the same issue Indiana trial court denied on the merits in 2004. Jethroe has not exhausted his appellate rights on the underlying petition and, instead, is trying to jump directly to federal court to obtain relief. For multiple reasons explained in further detail herein, Jethroe's petition for a writ of habeas corpus must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
Jethroe was convicted of first-degree murder and sentenced to life in prison in April 1972 in Marion Superior Court, Criminal Division, Room Three. His conviction was upheld by the Supreme Court of Indiana on direct appeal. Jethroe v. State, 319 N.E.2d 133 (Ind. 1974). He sought post-conviction relief on issues unrelated to the current petition, but was denied relief. Jethroe v. State, 400 N.E.2d 1376 (Ind. 1980).
Jethroe was released to parole on his life sentence on November 23, 1993. [Dkt. 8-2 at 1.] Because this was an "Old Code" life sentence, Jethroe was on parole for life unless discharged by the Indiana Parole Board ("
Jethroe's parole was revoked on March 17, 1995, but the Parole Board voted to reinstate him to parole release. [Dkt. 8-2 at 2-4.] His parole was revoked again on January 12, 1996 for multiple violations, including use of alcohol, driving violations, and conversion. [Id. at 5, 7.]
On June 12, 1996, in Marion Superior Criminal Court 9, Jethroe was convicted of Operating a Vehicle While Intoxicated as a felony, Driving while Suspended, and Personal Intoxication. [Id. at 9.] He was sentenced to 1,095 days, 365 days, and 180 days respectively, to be served consecutively to any time assessed for violating parole. [Id.]
On July 27, 2001, the Parole Board allowed Jethroe to start serving his new sentence by granting "turnover" effective that day. [Id. at 10.] A subsequent declaration from Valerie Parker, a member of the Parole Board when the decision was made, confirmed that the term "turnover" means that "the offender is allowed to start serving the sentence or sentences that are to be served consecutively to the sentence for which the offender was on parole and on which parole was revoked." [Dkt. 8-1 at 6 ¶ 5.] "Turnover" is not a vote or an order to discharge the offender from a sentence. [Id. at ¶ 4.] A "discharge" of parole is a separate and distinct vote that is not the same as "turnover." [Id. at ¶ 6.] The Parole Board's decision to "turnover" Jethroe's sentence meant that he was allowed to start serving the sentenced for operating a motor vehicle while intoxicated, driving while suspended, and public intoxication, the start of which had been held in abeyance while the Parole Board made Jethroe serve additional time on the murder charge because of his violation of parole. [Id. at 6-7 ¶ 7.] The decision did not mean that Jethroe was discharged or released from his sentence of life for murder. [Id.]
After serving the three alcohol and driving related sentences, Jethroe was again released to parole on his life sentence for murder on June 27, 2002. [Dkt. 8-2 at 11.]
On December 24, 2003, Jethroe waived a preliminary parole hearing after being charged with additional criminal conduct violations. [Id. at 22.] On February 20, 2004, Jethroe was convicted of Possession of a Firearm by a Serious Violent Felon and sentenced to fifteen years, with five years suspended. [Id. at 23.] On April 14, 2004, the Parole Board again revoked Jethroe's parole. [Id. at 24.] Jethroe remains incarcerated. [Dkt. 8 at 6.]
On May 20, 2004, Jethroe filed a petition for post-conviction relief with the Marion Superior Court, Criminal Division, Room 3. [Dkt. 8-1 at 1.] Jethroe argued that he was being improperly held because the "Parole Board turned Jethroe over off the 1972 case, over to the June 2, 1996 cause . . . [and then] went back to the 1972 case to hold Jethroe in prison without even a glimpse of Due Process of Law." [Id. at 3.] The court held a hearing on July 27, 2004, and entered its findings of fact and conclusions of law on September 24, 2004, denying Jethroe's petition. [Id. at 8-12.] In relevant part, the court found that:
[Id. at 10-11.]
Jethroe initiated an appeal; however, it was dismissed on June 30, 2005 because of his failure to file a supplemental record as ordered by the Indiana Court of Appeals three times. [Id. at 13.]
On May 12, 2008, Jethroe filed a subsequent petition for post-conviction relief with Criminal Court 9, where he had been convicted of the alcohol-related offenses. [Dkt. 8-1 at 14, 23, 25.] On July 14, 2008, that court dismissed Jethroe's petition for res judicata because "in 2004, Jethroe presented the same claim to Criminal Court 3 and judgment was entered against him and his attempt to appeal was dismissed for failure to follow the Rules." [Id. at 25-26.]
On September 30, 2008, Jethroe filed another petition for post-conviction relief in Criminal Court 9 raising the same issue concerning his perceived parole discharge. [Id. at 27-34.] On October 6, 2009, the court dismissed Jethroe's petition, again concluding it was barred by res judicata. [Id. at 36-37.] Jethroe's successive notice of appeal was denied. [Id. at 39.] Jethroe filed a notice of appeal with the Indiana Court of Appeals anyway, but it was dismissed on January 29, 2010. [Dkt. 8-3 at 5-6.]
Jethroe filed another petition for post-conviction relief on April 19, 2011, [dkt. 1-1 at 2-9], which was denied on May 4, 2011, [dkt. 8-4 at 1]. Jethroe initially filed a Motion for Inordinate Delay with this Court, arguing that the post-conviction court had not ruled on his petition, [dkt. 1], but the Court denied that motion as not forming a basis for habeas relief, [dkt. 2 at 1-2]. Jethroe filed an Amended Petition for Writ of Habeas Corpus on April 11, 2012, [dkt. 3], which is now fully briefed, [dkt. 16].
A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, that the state court which convicted him unreasonably applied a federal doctrine declared by the United States Supreme Court." Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000). "The habeas applicant has the burden of proof to show that the application of federal law was unreasonable." Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
In addition to the substantive standard noted above, "[o]ut of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default." Dretke v. Haley, 541 U.S. 386, 388 (2004). Before a federal court can entertain a petition for habeas corpus, a state prisoner must exhaust his state remedies by presenting his claims fully and fairly to the state courts. Howard v. O'Sullivan, 185 F.3d 721, 726 (7th Cir. 1999) (citing 28 U.S.C. 2254(b)(1)(A), (c); O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997)). "A state prisoner . . . may obtain federal habeas review of his claim only if he has exhausted his state remedies and avoided procedurally defaulting his claim." Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). Procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992), cert. denied. When procedural default has occurred, it can be overcome if a habeas petitioner "can demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the petitioner's `actual and substantial disadvantage,'); or (b) that failure to consider his claim would result in a fundamental miscarriage of justice (i.e., a claim of actual innocence)." Conner v. McBride, 375 F.3d at 649 (internal citations omitted). "Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982).
Typically the Court addresses issues surrounding procedural default before the merits of a claim. However, while the procedural default doctrine precludes habeas relief on a defaulted claim, it is not jurisdictional. See Trest v. Cain, 522 U.S. 87, 89 (1997). Thus, while the procedural default issue should ordinarily be resolved first, "judicial economy sometimes dictates reaching the merits of [a claim or claims] if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated." Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999); see also Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (noting that procedural default issue should ordinarily be resolved first, but denying habeas relief on a different basis because resolution of the default issue would require remand and further judicial proceedings).
Jethroe emphasizes numerous times in his petition that his current request for relief is based on the post-conviction relief petition he filed April 19, 2011. [See, e.g., dkt. 11 at 4 ("Note this Particular Case started on April 19, 2011.").] He asserts, like in his previous petitions for post-conviction relief, that he is being illegally held because he believes that when the Parole Board "turned over" his commitment in 2001 so that he could start serving the alcohol-related conviction sentences, it released him from serving additional time on the murder charge because of his parole violation. [Id. at 4-9.] He cites Meeker v. Indiana Parole Board, 794 N.E.2d 1105 (Ind. Ct. App. 2003), throughout his brief as support for his argument and contends that "Meeker applies to Jethroe" and that "[t]his Court not only has the authority, but the duty to grant the Writ because of the `Meeker' Standard." [Dkt. 11 at 5.]
It is well established that "[f]ederal courts may not issue writs of habeas corpus to state prisoners whose confinement does not violate federal law." Wilson v. Corcoran, 131 S.Ct. 13, 14 (U.S. 2010). "[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts." Id. at 16 (original emphasis). As has "repeatedly" been held, "`federal habeas corpus relief does not lie for errors of state law.'" Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Wilson, 131 S. Ct. at 16 (quoting Estelle, 502 U.S. at 67-68).
The heart of Jethroe's habeas petition hinges on his assertion that he is being held in violation of Indiana state law in light of an Indiana Court of Appeals case interpreting and applying an Indiana statute. Meeker, 794 N.E.2d at 1108 (interpreting Ind. Code § 35-50-6-1). He alleges no violations of federal law on this issue,
Even if there was a federal basis for Jethroe's claim, there are multiple procedural defects that preclude this Court from awarding relief. Again, Jethroe emphasizes throughout his papers that his current request for relief is based on a petition he filed in state court on April 19, 2011. [See, e.g., dkt. 11 at 4 ("Note this Particular Case started on April 19, 2011.").] But Jethroe did not appeal the denial of that petition. Instead, he is trying to bypass the established system of state court appellate review and jump straight to federal court, which he cannot do. See Howard, 185 F.3d at 726; 28 U.S.C. § 2254(b)(1) ("An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State."). While Jethroe contends that the trial court never ruled on the underlying petition, that belief is incorrect. [Dkt. 8-4 (docket showing petition denied on May 4, 2011).] Jethroe concedes that ruling in his reply brief but maintains that he was unaware of it and proceeds to press on with arguments surrounding the merits of his claim that he is being held in violation of Meeker. [Dkts. 11 at 3, 4-10; 15.] Because Jethroe did not exhaust state court appellate review on the underlying petition and, instead, attempts to jump directly to federal court, his petition must be denied for his failure to exhaust. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding that "a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort" has not properly exhausted the claims for purposes of 28 U.S.C. § 2254(b)(1)).
As an additional basis on which Jethroe's petition must be denied, the Court notes that Jethroe's April 2011 petition for post-conviction relief and this petition for habeas review present the same issue Jethroe raised in three previous unsuccessful petitions for post-conviction relief, one of which he lost on the merits. Specifically, on May 20, 2004, Jethroe filed a petition for post-conviction relief with the Marion Superior Court, Criminal Division, Room 3 arguing that he was being improperly held because the "Parole Board turned Jethroe over off the 1972 case, over to the June 2, 1996 cause . . . [and then] went back to the 1972 case to hold Jethroe in prison without even a glimpse of Due Process of Law." [Dkt. 8-1 at 1, 3.] That court held a hearing and entered its findings of fact and conclusions of law on September 24, 2004, rejecting Jethroe's Meeker argument on the merits. [Id. at 10-11.] Jethroe initiated an appeal from that decision; however, it was dismissed on June 30, 2005 because of his failure to file a supplemental record as ordered by the Indiana Court of Appeals three times.
The Court has carefully reviewed the state record in light of Jethroe's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits. "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). The deference due to state court decisions "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 131 S. Ct. at 786; see also Cavazos v. Smith, 132 S.Ct. 2, 7-8 (2011) (per curiam) (citing Supreme Court jurisprudence "highlighting the necessity of deference to state courts in § 2254(d) habeas cases"). Jethroe's habeas petition does not present such a situation and that petition is therefore
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the Court finds that Jethroe has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "debatable whether [this Court] was correct in its procedural ruling[s]." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court, therefore, denies a certificate of appealability.
