Cecil L. Lewis, Petitioner-appellant, v. Jack R. Duckworth, Respondent-appellee, 45 F.3d 432 (7th Cir. 1994)

ORDER

Cecil Lamar Lewis appeals the district court's dismissal without prejudice of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 for failure to exhaust state court remedies. Lewis contends that a five year delay on the part of the state trial court in setting a hearing date on his petition for post-conviction relief is ground for waiving the exhaustion requirement and reaching the merits of his petition. Because we conclude that the state court did not create a procedural impediment to Lewis' ability to proceed on his own to exhaust his available state court remedies, we affirm the district court.

In 1983, Lewis was convicted of robbery and received a sentence of sixty years, thirty years for the robbery conviction and an additional thirty years for being found a habitual offender. In 1986, the Indiana Public Defender office began to "represent" Lewis;¹  his case was passed amongst various public defenders and he was thrice put to the choice of being represented by the public defender office or receiving a copy of the state court records.²  In April 1989, Lewis filed a state petition for post-conviction relief. Nothing in the record before us indicates that the petition is not still pending in the Lake Superior Court, Criminal Division.

We review questions of law regarding the denial of a petition for a writ of habeas corpus de novo. Verdin v. O'Leary, 972 F.2d 1467, 1481 (7th Cir. 1992). A federal court may consider a petition for writ of habeas corpus under Sec. 2254 only after the petitioner has first presented her claims to a state court and exhausted her state remedies. Castille v. Peoples, 489 U.S. 346, 349 (1989); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). A petition must be dismissed if available state remedies have not been exhausted. Castille, 489 U.S. at 349; Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), cert. denied, 112 S. Ct. 387 (1992). We may waive the exhaustion requirement only in unusual cases "where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions." Bartone v. United States, 375 U.S. 52, 54 (1963) (per curium); see also 28 U.S.C. § 2254(b). An inordinate or unjustifiable delay for which the state is responsible is one such procedural obstacle allowing us to excuse the exhaustion requirement. See Lane v. Richards, 957 F.2d 363, 365 (7th Cir.), cert. denied, 113 S. Ct. 127 (1992); Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1993); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970).

In this case, as in Lane v. Richards, the inordinate delay in hearing Lewis' state court petition for post-conviction relief is attributable to the Indiana public defender appointed to represent Lewis, not the state court. See Lane v. Richards, 957 F.2d at 365. A prisoner does not have a federal constitutional right to the assistance of counsel during post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987). Since Lewis has no constitutional right to be represented by the Public Defender of Indiana and Indiana has neither barred Lewis from proceeding pro se nor created any other procedural obstacle, Lewis has failed to show that the exhaustion requirement should be waived. See Lane, 957 F.2d at 365 (" [A]s the constitution does not guarantee the aid of counsel to prosecute a collateral attack, putting a prisoner to a choice between a lawyer and a prompt hearing does not violate the Constitution.").

The district court's dismissal without prejudice of Lewis' petition for a writ of habeas corpus is therefore AFFIRMED.