Opinion

Roper v. Warden

Court
District Court, N.D. Indiana
Filed
Aug 5, 2021
Cited by
0 cases
Authority
More cited than 21.4%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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