Pica v. St. Joseph Cnty. Prob. Dep't, CAUSE NO. 3:10-CV-0258 WL

Decision Date24 February 2012
Docket NumberCAUSE NO. 3:10-CV-0258 WL
PartiesTHOMAS ANTHONY PICA, Petitioner, v. ST. JOSEPH COUNTY PROBATION DEPARTMENT, Respondent.
CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

THOMAS ANTHONY PICA, Petitioner,
v.
ST. JOSEPH COUNTY PROBATION DEPARTMENT, Respondent.

CAUSE NO. 3:10-CV-0258 WL

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

Dated: February 24, 2012


OPINION AND ORDER

Petitioner Thomas Pica filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions in the St. Joseph Circuit Court for non-payment of child support, intimidation, and harassment, for which he was sentenced to 188 days of incarceration and five years of probation. The Petitioner is currently on probation and is in the custody of the St. Joseph County Probation Department.

The Court reviewed Pica's petition for writ of habeas corpus pursuant to Rule 4 of the Rules Governing Section 2254 Cases, dismissed the claims presented in grounds one, two, three, four, five, six, seven, ten, eleven, thirteen, fourteen, sixteen, and seventeen of his petition. The Court granted the Petitioner leave to proceed on grounds eight, nine, twelve, and fifteen, of his petition. In grounds eight and fifteen, Pica asserts ineffective assistance of counsel; in ground nine he asserts that his convictions for intimidation and harassment violate the Fifth Amendment's double jeopardy clause; and in ground twelve he asserts that he did not receive good time credits for time he spent in jail.

The Respondent argues that Pica did not exhaust his state court remedies on the claims he presents in grounds eight, nine, twelve, and fifteen, of his petition, as required

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by 28 U.S.C. 2254(b)(1)(A). In his traverse, Pica does not dispute the Respondent's contention that he did not exhaust his state court remedies, but argues that the failure to exhaust these issues was the fault of his appellate counsel (DE 22 at 3-4).

The portion of the state court record submitted by the Respondent establishes that in his direct appeal, filed by his appellate counsel, the Petitioner contended that the evidence was insufficient to sustain his convictions and that his trial counsel was ineffective (DE 19-3). On October 21, 2009, finding no error, the Indiana Court of Appeals affirmed the trial court's judgment and sentence (DE 19-5).

The Petitioner, proceeding pro se, sought rehearing raising four new claims of error: ineffective assistance of appellate counsel, double jeopardy, unaccounted jail time, and renunciation of citizenship (DE 19-6). The Indiana court of appeals denied rehearing on January 13, 2010 (DE 19-2 at 4). On transfer, again proceeding pro se, the Petitioner raised an additional twelve new issues for the first time (DE 19-7). Under Indiana law, a new claim may not be raised for the first time on rehearing or transfer. See, e.g., Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990); City of Indianapolis v. Wynn, 239 Ind. 567, 159 N.E.2d 572, 582 (1959); Fields v. State, 179 Ind. App. 421, 425, 386 N.E.2d 184, 186 (1979) (opinion on rehearing). The Indiana Supreme Court denied transfer on March 25, 2010 (DE 19-2 at 4). Although the issues the Petitioner sought to raise in his request for rehearing and his petition to transfer could have been presented to the Courts in a petition for post-conviction relief, he did not seek post-conviction relief.

Section 28 U.S.C. 2254(b)(1)(A) provides that an application for a writ of habeas corpus by a state prisoner shall not be granted unless "the applicant has exhausted the

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remedies available in the courts of the State." To fully exhaust his state court remedies, a habeas petitioner must seek discretionary review from the State's highest court where that review is normal, simple, and an established part of the State's appellate review process. O'Sullivan v. Boerckel 526 U.S. 838, 846-47 (1999). Failure to exhaust available state court remedies constitutes a procedural default. To avoid a procedural default, a petitioner must have presented his federal claims to the state courts before he seeks federal review of these claims. Id. at 844. It is the petitioner's burden to prove exhaustion. Baldwin v. Lewis, 442 F.2d 29 (7th Cir. 1971).

Before considering the merits of a habeas petition, a federal 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). The exhaustion requirement is premised on concerns of comity; the state courts must be given the first...

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