Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. S84-0312, Allen Sharp, Chief Judge.
Before BAUER, POSNER, and FLAUM, Circuit Judges.
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. § 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. § 2254(b). For the reasons given below, we affirm.
The only issue presented to this court is whether petitioner exhausted his state court remedies as required by § 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 petitioner 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, 1982 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.
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. Istead, 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. § 2254(b); Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971), providing the highest court in the state one fair opportunity to correct any alleged constitutional errors by the trial court satisfied the exhaustion requirement. See id. at 275; Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (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 777 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 75 L. Ed. 2d 937, 103 S. Ct. 1508 (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, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) (per curiam). ...