Clay v. Bronnenberg
Decision Date | 20 December 1991 |
Docket Number | No. 90-1320,90-1320 |
Citation | 950 F.2d 486 |
Parties | Joel CLAY, Petitioner/Appellant, v. Robert BRONNENBERG and Indiana Attorney General, Respondents/Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
Ginamarie A. Gaudio (argued), Williams & Montgomery, Chicago, Ill. and Thomas Broden, Notre Dame, Ind., for petitioner/appellant.
Wayne E. Uhl, Deputy Atty. Gen. (argued), Office of the Atty. Gen., Federal Litigation, Indianapolis, Ind., for respondents/appellees.
Before BAUER, Chief Judge, CUMMINGS and WOOD, Jr., Circuit Judges.
BACKGROUND
In 1977, Clay was convicted of second degree burglary in an Indiana court and sentenced to two to five years' imprisonment. In 1985, Indiana again convicted him of second degree burglary. Clay's sentence on the 1985 conviction was two years, plus another thirty, in part, because of his 1977 conviction. 1 See Indiana's Habitual Offender Statute Ind.Code § 35-50-2-8. Clay is presently incarcerated in an Indiana state prison.
On November 11, 1989, Clay filed a pro se petition for habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his 1977 conviction on the grounds that his guilty plea was involuntary and that he received ineffective assistance of trial counsel. Indiana moved to dismiss the petition, arguing that Clay was not "in custody" as to the 1977 conviction because that sentence expired in 1982. Clay then filed a "Traverse" in support of his section 2254 petition. On January 11, 1990, Clay filed "Petitioner's Response to the State's Motion to Dismiss," declaring for the first time that his 1985 sentence was enhanced by the allegedly unconstitutional 1977 burglary conviction. Thereafter, without the benefit of a response from Indiana, the district court dismissed Clay's petition because it found that he was not "in custody" on his 1977 conviction.
ANALYSIS
On appeal, Indiana recognizes that Clay's petition intended to challenge his thirty-year habitual offender sentence, which he is currently serving. 2 Indiana also acknowledges that Clay is "in custody" pursuant to his 1985 sentence. See Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991) ( ); Lowery v. Young, 887 F.2d 1309, 1312-13 (7th Cir.1989). Further, Indiana recognizes that there is clear Seventh Circuit precedent which permits the district court to consider the constitutionality of Clay's expired 1977 conviction. See Crank, 905 F.2d at 1092 ( ).
Even though Indiana concedes that the district court erroneously dismissed Clay's petition for lack of jurisdiction, it argues that the district court should be upheld because Clay has failed to demonstrate that he exhausted his state court remedies on his current confinement. Indiana also raises the issue of procedural default. 3
The record is devoid of information concerning exhaustion or default because the district court dismissed the petition for lack...
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...on sentence A. See Fawcett v. Bablitch, 962 F.2d 617 (7th Cir.1992); Lowery v. McCaughtry, 954 F.2d 422 (7th Cir.1992); Clay v. Bronnenberg, 950 F.2d 486 (7th Cir.1991); Crank v. Duckworth, 905 F.2d 1090 (7th Cir.1990); Lowery v. Young, 887 F.2d 1309 (7th Cir.1989). Because § 2254 authorize......
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Lowery v. McCaughtry
...in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Lowery v. Young, 887 F.2d 1309 (1989). Accord, Clay v. Bronnenberg, 950 F.2d 486 (7th Cir.1991); Crank v. Duckworth, 905 F.2d 1090 (7th Cir.1990). We observed that Lowery could seek a writ of error coram nobis in Georgia, usi......
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Fawcett v. Bablitch, 91-3124
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