Opinion
Cause No. 3:05-CV-30 TS.
February 2, 2005
MEMORANDUM AND ORDER
On January 13, 2005, Petitioner Keland Garner submitted a Petition for writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. However, the Petition must be dismissed because Mr. Garner has not exhausted his state court remedies. In his Petition, Mr. Garner indicates that he filed a petition for state post conviction relief that is still pending.
Mr. Garner submits that he filed his petition for post conviction relief on October 14, 2004, and that those proceedings in state court are still pending. He argues that the state court delay is "inordinate." Some cases have held that undue delay can be the basis of ineffective service. See, e.g., Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981) (holding that where the motion for post conviction relief remained dormant in the state court for three years, dismissal of petition for habeas corpus was erroneous). To proceed to the merits of the habeas petition, the delay must be both inordinate and unjustifiable. Id. "Where state court delay is inordinate, the district court must hold a hearing to determine whether the delay is justifiable. If it is not justifiable, the court must hear the habeas petition on it merits." Id. There is no bright line rule that determines when a delay passes from reasonable to inordinate. Courts have found delays as short as seventeen months inordinate. See e.g., Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970).
Here, the three-month delay cannot be considered inordinate and Mr. Garner is not entitled to a hearing. Mr. Garner filed his petition for post conviction relief on October 14, 2004. Mr. Garner's petition for post conviction has not suffered inordinate delay such as those petitioners in Low and Dozie (delays of three years and seventeen months respectively). The fact that the state procedure is time-consuming is not a per se reason for federal intervention. Wilson v. Rowe, 454 F.2d 585, 587 (7th Cir. 1972). 28 U.S.C. § 2254(b)(1)(A) forbids a federal court from excusing the exhaustion requirement unless the state's corrective process is incapable of protecting the rights of the applicant. Here, the state's corrective process is capable of protecting the rights of the applicant, just not in the amount of time Mr. Garner would like.
Mr. Garner's petition does not meet any of the requirements necessary for this court to excuse the exhaustion doctrine because the delays have not been inordinate. For all of the foregoing reasons, the Petition is DISMISSED without prejudice for failure to exhaust state court remedies.