Opinion
No. 3:02cv0005 AS
May 31, 2002
MEMORANDUM AND ORDER
On January 7, 2002, pro se petitioner, Larriante' J Sumbry, an inmate at the Indiana State Prison (ISP) in Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on May 17, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed three separate items on May 21, 2002, a Traverse, which has been examined, a motion to clarify, and, perhaps most importantly, a motion to file the full and complete state court record. This Court has given special attention to the additional filing made by this petitioner on May 29, 2002.
Of considerable moment is the unpublished memorandum decision of the Court of Appeals of Indiana authored by Judge Baker and entered on August 27, 2001. The same is quite comprehensive and was concurred in by Judges Friedlander and Robb. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein.
There was also a petition to transfer filed and denied on December 13, 2001.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. His 14-year sentence was entered from the Lake Superior Court in 1998 for dealing in a controlled substance. Apparently, there is a one-year sentence for escape consecutive to that 14-year sentence. Projected parole release is July 30, 2008. Certainly, the facts found by the Court of Appeals of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). The collateral review envisioned by § 2254 focuses on violations of the Constitution, treaties and laws of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. den., 489 U.S. 1088 (1989). The focus is not on violations of state law. See Estelle v. McGuire, 502 U.S. 62 (1991). Under such cases as O'Sullivan v. Boerckel, 526 U.S. 838 (1999), and Castille v. Peoples, 489 U.S. 346 (1989), claims must be presented to the state's highest court, or procedural default will generally click in.
The appeal taken here to the Court of Appeals and then to the Supreme Court of Indiana dealt with the denial of state post-conviction relief. It is correct that this petitioner made a general assertion without any particularization that the decision of the Court of Appeals was erroneous and is contradictory to the laws, statutes and Constitution of Indiana, as well as those of the United States of America. Even understanding that Haines v. Kerner, 404 U.S. 519 (1972) applies, that does not preserve very much. There needs to be a fair opportunity to address a claim under Sullivan, and certainly, the Court of Appeals of Indiana, speaking through one of its senior members, engaged in a very extensive exposition of the many issues raised. In the opinion of this Court, the Court of Appeals got the ones of federal constitutional implication correct. See Wilson v. Briley, 243 F.3d 325 (7th Cir. 2001). With all deference, the presentation to the highest court in the State of Indiana completely fails the test under O'Sullivan.
In general, the facts of this case do not fit into the pattern found in Lackawanna County District Attorney v. Coss, 121 S.Ct. 1567 (2001), and is clearly different than Grady v. Corbin, 495 U.S. 508 (1990). In regard to Grady, the Supreme court has not adhered to it. In fact, it has been overruled. See United States v. Dixon, 509 U.S. 688, 704 (1993). This proceeding simply does not provide a forum for this petitioner to reclaim all alleged errors in the state case from the get-go.
This Court does not presently conceive it necessary to have the full and complete state record, and that request is now DENIED, as is the petition for relief under 28 U.S.C. § 2254.
IT IS SO ORDERED.