Opinion
No. 3:01cv0754 AS
April 12, 2002
MEMORANDUM AND ORDER
On October 24, 2001, pro se petitioner, Milton McGee, an inmate at the Wabash Valley Correctional Facility (WVCI) in Carlisle, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Motion to Dismiss filed on behalf of the respondent by the Attorney General of Indiana on March 21, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The Court also has before it a brief filed by this pro se petitioner on or about April 11, 2002, which has been carefully examined.
This petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. Special note must be taken of the decision of the Supreme Court of Indiana in McGee v. State, 699 N.E.2d 264 (Ind. 1998), a unanimous opinion authored by Justice Selby.
Certainly, the facts found by the highest court in the State of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). A jury sitting in Lake County, Indiana found this petitioner guilty of attempted murder and battery and also found him to be a habitual offender. The state trial court merged the two convictions and sentenced the petitioner to 70 years, which included 40 years for his attempted murder conviction and 30 years for being a habitual offender.
Clearly, there are issues presented which were not considered and heard by the Supreme Court of Indiana. Under the state law, further appellate review is no longer available.
Certainly, there must be a presentation of issues to the state court. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999), and Castille v. Peoples, 489 U.S. 346 (1989).
There was an aborted attempt to appeal from the state trial court's denial of post-conviction relief, but no such appeal was ever prosecuted. This Court cannot exercise its jurisdiction under 28 U.S.C. § 2254 as a substitute for state appellate review with regard to post-conviction proceedings. Specifically, this petitioner has failed to get authority from the Court of Appeals of Indiana to file a successive petition for state post-conviction relief.
This Court does not have any wiggle room here, given the state of record, and has no choice but to GRANT the Attorney General's motion to dismiss. IT IS SO ORDERED.