Wallace v. Duckworth

Citation778 F.2d 1215
Decision Date19 November 1985
Docket NumberNo. 85-1247,85-1247
PartiesMancil WALLACE, Petitioner-Appellant, v. Jack DUCKWORTH and Indiana Attorney General, Respondents-Appellees. . *
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Mancil Wallace, pro se.

Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before BAUER, POSNER and FLAUM, Circuit Judges.

PER CURIAM.

Petitioner, Mancil Wallace, an inmate incarcerated at the Indiana State Prison in Michigan City, Indiana, petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254, in the Northern District of Indiana. Chief Judge Sharp dismissed that petition because of petitioner's failure to exhaust his state court remedies as required by 28 U.S.C. Sec. 2254(b). For the reasons given below, we affirm.

I. Procedural Background

The only issue presented to this court is whether petitioner exhausted his state court remedies as required by Sec. 2254(b). In reaching a decision it is unnecessary to detail either the facts of the underlying conviction or the substantive legal issues involved. It is necessary, however, to describe the various procedural means petitioner has employed in seeking to have the Fourth Amendment issue raised here presented in state court.

Petitioner was convicted in a state court (jury) trial of the crimes of rape while armed with a deadly weapon and being a habitual offender and received a determinate sentence of 65 years. Petitioner was represented by counsel at trial, and a public defender was appointed to represent him for his direct appeal, of right, to the Indiana Supreme Court. The substantive issue raised in the instant habeas corpus petition concerns the admission of evidence which was allegedly procured improperly as the result of an arrest and search violating the Fourth Amendment.

Petitioner was sentenced on September 24, 1981. On November 23, 1981, petitioner, by his attorney, filed a motion to correct error with the trial court, which begins the appeal process in criminal cases in Indiana. Petitioner raised four issues, none of which was the Fourth Amendment issue he raises in his habeas petition. On December 17, 1981, the trial court denied this motion. A praecipe for record of proceedings was filed on January 14, 1982 and, after getting an extension of time, the record of proceedings was filed with the Indiana Supreme Court on July 19, 1982.

Petitioner and his appellate attorney apparently disagreed as to the issues to be appealed. On February 8, 1982, petitioner filed, pro se, a "Belated Motion to Correct Errors" in the Elkhart County Superior Court, which was the court in which he was convicted. Petitioner filed this motion under Indiana Post-Conviction Remedy (P.C.R.) Rule 2 and raised the Fourth Amendment issue. This motion was denied on February 10, 1982 and ordered stricken from the record.

On December 20, 1982, petitioner filed a pro se "Petition for Writ of Habeas Corpus" with the LaPorte County Circuit Court, the jurisdiction in which he was incarcerated. Petitioner again raised the Fourth Amendment issue. The court denied the writ on the same day.

On May 20, 1983, petitioner filed a pro se "Belated Motion to Correct Errors," under P.C.R. Rule 2, with the Indiana Supreme Court. Petitioner raised nine issues, including the Fourth Amendment issue. Petitioner filed an accompanying Memorandum of Law in which he argued the Fourth Amendment issue among others. Petitioner received a letter, dated June 13, 1983, from the Clerk of the Indiana Supreme Court stating this motion had not yet been ruled on, but that petitioner would be notified when a ruling "comes down."

Petitioner's attorney filed a brief with the Indiana Supreme Court addressing only the four issues raised in the original motion to correct error. The prosecution's brief has not been made available to this court. Since neither side has stated otherwise, we assume that the prosecution did not brief the Fourth Amendment issue for the Indiana Supreme Court. We also assume (for nothing in the record indicates otherwise) that the Fourth Amendment issue was not raised in oral arguments before the Indiana Supreme Court. On September 20, 1983, the Indiana Supreme Court unanimously affirmed petitioner's conviction. No mention was made of any issues other than the four raised in the original motion to correct error. See Wallace v. State, 453 N.E.2d 245 (Ind.1983). Petitioner filed a pro se motion for rehearing in which he urged the court to consider the "fundamental" issues contained in his belated motion, including the Fourth Amendment issue. This motion was denied, without opinion, on November 16, 1983. On May 18, 1984, petitioner filed his petition for writ of habeas corpus in federal district court.

II. Questions Presented

Petitioner contends that he exhausted his state remedies on the Fourth Amendment issue by filing the Belated Motion to Correct Errors with the Indiana Supreme Court. Respondents contend, and the district court so held, that petitioner followed improper procedure by filing under P.C.R. Rule 2 while the appeal was pending. Instead, petitioner should have waited until after the Indiana Supreme Court issued its decision and then he should have filed a motion with the trial court under P.C.R. Rule 1. Since petitioner could file under P.C.R. Rule 1 at the time the federal habeas petition was filed, respondents contend that petitioner's remedies were not exhausted.

While it is uncontrovertible that a state prisoner must exhaust his state remedies before he can petition for a writ of habeas corpus in federal court, see 28 U.S.C. Sec. 2254(b); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), providing the highest court in the state one fair opportunity to correct any alleged constitutional errors by the trial court satisfies the exhaustion requirement. See id. at 275, 92 S.Ct. at 512; Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir.1982); United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir.1984); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir.), aff'd on rehearing, 691 F.2d 677 (5th Cir.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). There is no requirement that a party make repetitious applications for relief to the same court. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971) (per curiam). Thus the exhaustion requirement can be met by either (a) providing the highest court in the state a fair opportunity to consider the constitutional issue, or (b) having no further available means for pursuing a review of one's conviction in state court.

Framed most simply, the exhaustion issue in this case consists of two questions. (1) Did petitioner provide the Indiana Supreme Court with a fair opportunity to consider the Fourth Amendment issue? (2) As of the time petitioner filed his writ in federal court, did he lack any available means of having his convictions reviewed in Indiana Court by raising the Fourth Amendment issue? If the answer to either question is yes, then petitioner fulfilled the exhaustion requirement. 1

III. Fair Opportunity

We will first consider if the Indiana Supreme Court had a fair opportunity to consider the Fourth Amendment issue. In answering that question, we must initially consider Indiana appellate procedure and the circumstances of this particular case.

In order to appeal a criminal conviction in Indiana, the defendant must file a motion to correct error in the trial court within sixty days after the defendant is sentenced. Ind.Crim.Rule 16. The motion to correct error must include all errors that the defendant wants to preserve for appeal. If the trial court denies the motion, the defendant must initiate the appeal within thirty days by filing a praecipe with the clerk of the trial court requesting a record be prepared for appeal. Ind.Crim.Rule 19. The appeal is perfected by filing the record with the appellate court 2 within ninety days. Id. On appeal, the appellate court is not required to consider an alleged error unless it was included in the defendant's motion to correct error. See Brumfield v. State, 442 N.E.2d 973, 974 (Ind.1982). However, the Indiana Supreme Court will consider issues not raised in the motion to correct error if the error was fundamental and a gross mistake, see Young v. State, 249 Ind. 286, 289, 231 N.E.2d 797, 799 (1967), or a denial of fundamental due process, see Webb v. State, 259 Ind. 101, 106-07, 284 N.E.2d 812, 814-15 (1972).

Indiana also provides means for appealing a conviction when (a) new issues are discovered after the defendant's appellate rights have been exhausted, see P.C.R. Rule 1, or (b) defendant failed to meet the time limits for filing a motion to correct error or for taking an appeal. See P.C.R. Rule 2. (The pertinent provisions of the P.C.R. Rules are set out in the margin.) 3 Indiana also has a court-made rule for raising new issues while an appeal is pending. See Davis v. State, 267 Ind. 152, 157, 368 N.E.2d 1149, 1151 (1977); Coulson v. Indiana & Michigan Electric Co., 471 N.E.2d 278, 279 (Ind.1984). As we shall see, infra at 11, petitioner did not satisfy the requirements established in Davis.

In seeking to raise his Fourth Amendment issue in state court, petitioner failed to follow proper procedures when he filed his three pro se petitions. We will discuss each of these petitions one by one, but it should first be emphasized that petitioner's public defender properly and timely filed a motion to correct error before petitioner filed any of his pro se petitions. In addition, the public defender perfected the appeal in a proper and timely manner.

Petitioner filed his first belated motion to correct error after his attorney had filed the praecipe, but before the record of proceedings had been filed with the Supreme Court....

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