The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TALON ROPER,
Petitioner,
v. CAUSE NO. 3:21-CV-543 DRL-MGG
WARDEN,
Respondent.
OPINION AND ORDER
Talon Roper, a prisoner without a lawyer, filed a motion to reconsider the order
denying the habeas petition. Based on the timing of the motion, the court construes it as
a motion pursuant to Federal Rule of Civil Procedure 59(e). Banks v. Chicago Bd. of Educ.,
750 F.3d 663, 666 (7th Cir. 2014). “A court may grant a Rule 59(e) motion to alter or amend
the judgment if the movant presents newly discovered evidence that was not available at
the time of trial or if the movant points to evidence in the record that clearly establishes
a manifest error of law or fact.” Matter of Prince, 85 F.3d 314 (7th Cir. 1996); Deutsch v.
Burlington N. R.R. Co., 983 F.2d 741 (7th Cir. 1993). On July 30, 2021, the court denied the
habeas petition because it was untimely and because the claims were procedurally
defaulted. ECF 4.
In this motion to reconsider, Roper argues that the court should reopen this case
to allow him to demonstrate that Martinez v. Ryan, 566 U.S. 1 (2012), applies to his claims
to excuse procedural default. A habeas petitioner can overcome a procedural default by
showing both cause for failing to abide by state procedural rules and a resulting prejudice
from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804,
812 (7th Cir. 2008), cert. denied, 129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural
default is defined as “some objective factor external to the defense” that prevented a
petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S.
478, 492 (1986). As a general rule, “[n]egligence on the part of a prisoner’s postconviction
attorney does not qualify as cause.” Maples v. Thomas, 565 U.S. 266, 280 (2012). The
exception is that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” Martinez, 566 U.S. at 9; accord Brown v. Brown, 847 F.3d 502
(7th Cir. 2017).
To start, Mr. Roper’s allegations are insufficient to suggest that Martinez applies to
the sole ineffective assistance of trial counsel claim asserted in the habeas petition.
Specifically, he does not indicate that that claim became procedurally barred at the initial-
level post-conviction proceedings before the Allen Superior Court. Instead, he alleges in
the habeas petition that the Allen Superior Court improperly denied the ineffective
assistance claim in the petition for post-conviction relief on the merits without affording
him an opportunity to prove it. ECF 2-1 at 13-14. Moreover, even assuming that Martinez
applied to excuse the procedurally defaulted nature of this claim, the court still would
not reopen this case because this claim would remain untimely.
For these reasons, the court DENIES the motion to reconsider.
SO ORDERED.
August 5, 2021 s/ Damon R. Leichty
Judge, United States District Court