Salinas v. State of Ind., 94-2194
| Decision Date | 26 April 1995 |
| Docket Number | No. 94-2194,94-2194 |
| Citation | 53 F.3d 333 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Carlos SALINAS, Petitioner-Appellant v. STATE OF INDIANA, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before PELL, MANION and ROVNER, Circuit Judges.
Carlos Salinas, a state prisoner appearing pro se, appeals from the denial of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254, alleging that he was denied the right to confront and cross-examine his accusers, that he was denied the right to an impartial jury, and that both his trial and appellate counsel were ineffective. For the reasons set forth below, we affirm.
Salinas was convicted by a jury in an Indiana state court for distribution of cocaine and was sentenced to a sixteen year term of imprisonment. Represented by counsel, Salinas filed an appeal with the Court of Appeals of Indiana, which affirmed the conviction in Salinas v. State, 566 N.E.2d 1058 (Ind.Ct.App.1991). No transfer was sought to the Indiana Supreme Court. After the unsuccessful appeal, Salinas filed a pro se petition for modification of sentence with the Indiana Superior Court which was denied on October 9, 1991. On November 20, 1991, Salinas filed a pro se petition for post-conviction relief with the Indiana Superior Court. Salinas' petition was referred to the Indiana Public Defender's Office and Addie D. Hailstorks, a deputy state public defender, was appointed to represent Salinas regarding his post-conviction petition. Hailstorks filed her appearance on January 23, 1992. On December 9, 1991, in a separate proceeding, Salinas (represented by appellate counsel) filed a second motion for modification which was granted on January 14, 1992. A modification hearing was then scheduled for April 27, 1992. After the hearing, the trial court suspended two years of Salinas' sixteen year sentence.
On August 18, 1992, Hailstorks withdrew as counsel for Salinas (she had left the public defender's office) and another deputy public defender, Cynthia Russell, entered her appearance in the post-conviction proceeding on behalf of Salinas. Russell informed Salinas that because of her heavy caseload, there might be some delay in her review of Salinas' post-conviction petition. As a result of Russell's failure to proceed with his post-conviction petition, on June 17, 1993, Salinas filed a pro se motion to compel Russell to litigate the petition and schedule a hearing. On June 24, 1993, Russell informed Salinas that she would withdraw as counsel if he wished. Salinas wrote back, stating that he did not wish to waive his "right to counsel." Russell did not withdraw and Salinas' motion to compel was denied on July 14, 1993. On August 2, 1993, Salinas sought an interlocutory appeal from the trial court's denial of his motion to compel Russell's performance. The Indiana appellate court denied certification of the appeal. Finally, on September 28, 1993, Salinas filed a pro se petition for habeas corpus relief under 28 U.S.C. Sec. 2254 in the United States District Court for the Northern District of Indiana. The district court denied the petition holding that since Salinas' state post-conviction petition was still pending, he had not exhausted his state remedies and, therefore, his request for relief under Sec. 2254 was premature. This timely appeal follows.
Ordinarily, all available state remedies must be exhausted before a prisoner is entitled to federal habeas corpus relief. Rose v. Lundy, 455 U.S. 509, 515 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Jones v. Washington, 15 F.3d 671, 674 (7th Cir.), cert. denied, 114 S.Ct. 2753 (1994); Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988), cert. denied, Henderson v. Greer, 490 U.S. 1009 (1989); Varnell v. Young, 839 F.2d 1245, 1247 (7th Cir.1988). Although Salinas' post-conviction petition is still pending, he complains of an inordinate delay in having his petition decided--other than answers filed by the State of Indiana on January 16, 1993 and July 1, 1993, no action has been taken on Salinas' state post-conviction petition for over two years. Indeed, if an inordinate and unjustifiable state court delay is demonstrated, available state remedies may be deemed exhausted thereby permitting the district court to proceed with the merits of the habeas corpus petition. Jenkins v. Gramley, 8 F.3d...
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