Varner v. VanNatta, No. 3:2005cv00365 - Document 3 (N.D. Ind. 2005)
Court Description: OPINION AND ORDER that Petitioner Kevin Varner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 is dismissed without prejudice for failure to exhaust state court remedies. Mr. Varner's Motion for Leave to Proceed in Forma Pauperis is denied. ***Civil Case Terminated. Signed by Judge Philip P Simon on 6/22/05. (sda, )
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Varner v. VanNatta Doc. 3 case 3:05-cv-00365-PPS-PRC document 3 filed 06/22/2005 page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION KEVIN VARNER, Petitioner, vs. JOHN VANNATTA, Respondent. ) ) ) ) ) ) ) ) ) CAUSE NO. 3:05-CV-365 PS OPINION AND ORDER Petitioner Kevin Varner submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. However, the petition must be dismissed because Varner has not exhausted his state court remedies. In his petition, Mr. Varner indicates that he filed a state court motion to correct his erroneous sentence, and that motion is still pending. 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. Mr. Varner is in no danger of losing his right to file a writ for federal habeas corpus relief, because the statute of limitations is being tolled while his state court proceedings are pending. For all of the reasons stated this petition is DISMISSED without prejudice for failure to exhaust state court remedies. Mr. Varner s motion for leave to proceed in forma pauperis is DENIED. SO ORDERED. ENTERED: June 22, 2005 s/ Philip P. Simon PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT Dockets.Justia.com
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