                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                 Fed. R. App. P. 32.1




               United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604



                                Argued May 28, 2014
                               Decided August 19, 2014

                                        Before

                          JOEL M. FLAUM, Circuit Judge

                          DANIEL A. MANION, Circuit Judge

                          JOHN DANIEL TINDER, Circuit Judge



No. 13-1748

JOSEPH M. MONEGAIN, III,                         Appeal from the United States District
              Petitioner-Appellant,              Court for the Northern District of
                                                 Indiana, South Bend Division.
      v.
                                                 No. 13-cv-55
JESSE CARLTON, Chief Probation
Officer,                                         James T. Moody,
               Respondent-Appellee.              Judge.



                                      ORDER

      Joseph Monegain was convicted in Indiana state court of two counts of criminal
confinement and one count of battery. He appealed, but the state court affirmed his
conviction. Monegain then filed a petition in state court for post-conviction relief,
No. 13-1748                                                                        Page 2




arguing, among other things, ineffective assistance of appellate counsel. Monegain also
filed a petition for habeas corpus relief in federal court. The district court denied that
petition without prejudice because Monegain’s state post-conviction proceedings were
still pending. In dismissing his petition, the district court rejected Monegain’s argument
that he was excused from exhausting his state court remedies because of an
“inordinate” and “unjustifiable” delay in the state court’s resolution of his case. The
district court also denied Monegain a certificate of appealability, but this court granted
the certificate of appealability. Five days before oral argument, the state trial court
denied Monegain’s petition for post-conviction relief, rejecting Monegain’s claim of
ineffective assistance of counsel, malicious prosecution, and judicial bias. While the
state trial court had delayed Monegain’s case for more than two years, now that it has
issued its decision there is no longer an impediment to Monegain seeking resolution of
his state post-conviction petition in the Indiana appellate courts. Accordingly, because
Monegain has not exhausted his state court remedies, we affirm the district court’s
dismissal of his petition for habeas corpus without prejudice.

                                            I.

       In February 2008, Monegain got into a fight with his ex-girlfriend Carol
McElfresh, with whom he still lived.1 During the fight, he started pushing, grabbing,
and throwing McElfresh. Two other individuals, Jessica Walpole and Larry Murray,
were also living in the same house. Walpole heard loud voices and sounds “like things
were being thrown” and she went upstairs to investigate. Walpole told Monegain to get
away from McElfresh. Monegain turned on Walpole and pushed her against the stove.
McElfresh got between Walpole and Monegain, but Monegain grabbed McElfresh and
threw her down again. Walpole then grabbed a knife from the stovetop and ran to the
basement stairs, yelling to Murray to call the police. McElfresh saw Monegain going to
her bedroom saying “I know; I’ll show them; I’ll get the gun.” She saw him head to the
side of the bed where she kept her shotgun and crouch down. McElfresh ran to her
neighbor’s house and told them to call 911. Meanwhile, Walpole and Murray stayed in
the basement waiting for the police to arrive. From the basement, Murray could see the
bottom of Monegain’s legs at the top of the stairs and heard him “breech the gun” while

      1
          We take these facts from the Indiana appellate court decision affirming
Monegain’s conviction, which are presumed to be correct. Harris v. Thompson, 698 F.3d
609, 613 (7th Cir. 2012).
No. 13-1748                                                                             Page 3




yelling “I’m going to kill you, mother f*****, I’m going to blow your f****** heads off.”
After a standoff with police, Monegain eventually exited the house. A search of the
house revealed a shotgun loaded with two live shells on top of McElfresh’s bed.

       Based on these events, Monegain was charged and later convicted in Indiana
state court of two counts of criminal confinement and one count of battery. He was
sentenced on July 28, 2008, to concurrent terms of ten years’ imprisonment, with four
years of the sentence suspended. He served three years in prison and then was released
and began probation on July 28, 2011. Monegain completed his probation on July 28,
2014.2

        Following his conviction, Monegain appealed, challenging the sufficiency of the
evidence. The Indiana Court of Appeals affirmed. Monegain did not seek review in the
Indiana Supreme Court or the United States Supreme Court. On April 20, 2010,
Monegain filed a pro se petition for post-conviction relief in the state trial court, alleging,
among other things, ineffective assistance of appellate counsel. After filing that petition,
Monegain filed several motions and petitions in state court seeking to force the state
trial court to rule on his claims. He also amended the post-conviction petition three
times, with the final amendment coming on August 1, 2011. On August 29, 2011, the
trial court set a briefing schedule, giving Monegain sixty days to file supporting
affidavits and the State sixty days to respond. The State did not respond and the
petition was fully briefed as of February 29, 2012.

       After nearly a year with no action by the state trial judge on his post-conviction
petition, on January 29, 2013, Monegain filed this petition for a writ of habeas corpus.3


       2
        Even though Monegain has served his sentence and completed his term of
probation, his petition for habeas relief is not moot because “we presume collateral
consequences from his criminal conviction,” such as “the inability to possess firearms
lawfully.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008).


       3
         He had previously filed a petition for habeas relief in January 2012, but that
petition was dismissed without prejudice because Monegain’s post-conviction
proceedings were still pending and this court denied Monegain’s request for a
                                                                             (continued...)
No. 13-1748                                                                            Page 4




In his pro se habeas petition, Monegain alleged that his appellate attorney was
ineffective for failing to argue his trial counsel was ineffective by not objecting to the
use of inadmissible evidence and also by his “failure to impeach.” Before the district
court, Monegain acknowledged that he had not exhausted his state court remedies, but
argued that he was excused from doing so because of an “inordinate” and
“unjustifiable” delay in the state court’s resolution of his case. The district court rejected
that argument and this court granted a certificate of appealability.

        Now represented by counsel, Monegain appeals. In his brief, Monegain again
argued that he is excused from the exhaustion requirement because of the state trial
court’s delay in ruling on his post-conviction petition. We held oral argument for this
appeal on Wednesday, May 28, 2014. The Friday before argument, May 23, 2014, the
state trial court issued a three-page decision denying Monegain’s petition for post-
conviction relief. In that decision, the state trial court rejected Monegain’s arguments of
ineffective assistance of counsel, malicious prosecution, and judicial bias. As discussed
below, because the state trial court delay has ended and the State provides a viable
option for relief by appeal to the Indiana appellate court, we affirm the district court’s
dismissal of Monegain’s habeas petition without prejudice.

                                              II.

      On appeal, Monegain argues that he is excused from exhausting his state court
remedies.4 Ordinarily, before seeking federal habeas relief a petitioner must raise his


       3
         (...continued)
certificate of appealability.
       4
         Initially, the government argues that this court lacks jurisdiction over
Monegain’s appeal because the district court had denied his petition for habeas relief
without prejudice. However, “[t]here is no general rule that dismissals without
prejudice are nonfinal orders and therefore nonappealale under 28 U.S.C. § 1291.”
Schering-Plough Healthcare Prod., Inc. v. Schwarz Parma, Inc., 586 F.3d 500, 507 (7th Cir.
2009). Rather, “when the case does end in the district court, the dismissal is ripe for
appeal even if a similar case may be filed in the future because the dismissal was
without prejudice.” Id. Conversely, when a dismissal without prejudice can be
                                                                               (continued...)
No. 13-1748                                                                          Page 5




federal claims in state court. Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013). However,
under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner need
not exhaust his state court remedies if “circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b).

         Monegain argues that such circumstances exist in his case because his petition
for post-conviction relief was “unjustifiably” stalled in the state trial court for an
“inordinate” amount of time—from February 29, 2012, until May 23, 2014. Accordingly,
Monegain argues he is excused from exhausting his state court remedies. See Jackson v.
Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (holding, pre-AEDPA, that a petitioner is
excused from exhausting state court remedies if the delay is “inordinate” and
“unjustifiable”). However, because the state trial court has now issued its decision, the
impediment to Monegain obtaining review in the Indiana state courts has been
removed and the current circumstances of this case do not render the state process
ineffective. See Vreeland v. Davis, 543 Fed. App. 739, 742 (10th Cir. 2013) (rejecting the
petitioner’s argument that his failure to exhaust should be excused because of the delay
in his direct appeal because the delay at the court of appeals “is over”); Slater v.
Chatman, 147 Fed. App. 959, 960 (11th Cir. 2005) (holding that even after a sixteen-
month delay in the state court, “[g]iven that the state courts are now moving forward
with [the petitioner’s] direct appeal, we cannot say that ‘there is an absence of available
State corrective process[ ] or [that] circumstances exist that render such process
ineffective to protect the rights of the applicant’”) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)-
(ii))). Cf. Hughes v. Stafford, 780 F.2d 1580, 1581–82 (11th Cir. 1986) (holding under pre-
AEDPA habeas statute that petitioner was not excused from the exhaustion requirement
because “[a]lthough the eight-year delay in the state’s ruling on Hughes’ habeas corpus
petition should not have occurred, the state court nonetheless acted on the merits with


       4
        (...continued)
“immediately curable,” such as through an amended complaint that elaborates on or
changes allegations, such a decision would not be final. Id. In this case, the district
court’s dismissal without prejudice is not “immediately curable,” and the question
presented for appeal—whether Monegain is excused from his duty to exhaust his state
court remedies—is ripe for review. See, e.g., Sceifers v. Trigg, 46 F.3d 701, 702 (7th Cir.
1995) (exercising jurisdiction over the petitioner’s appeal which argued an inordinate
delay excused his obligation to exhaust state remedies and which challenged the district
court’s dismissal of his petition for habeas relief, without prejudice).
No. 13-1748                                                                           Page 6




prompt speed when Hughes asked for a ruling and there is nothing to indicate he
would not have received an expeditious handling of his case by the Georgia Supreme
Court”).

       Comity demands that we give “states the first opportunity to address and correct
alleged violations of a petitioner’s federal rights.” Liberman v. Thomas, 505 F.3d 665, 669
(7th Cir. 2007). As the Supreme Court long ago explained, “in the light of the relations
existing, under our system of government, between the judicial tribunals of the Union
and of the States, and in recognition of the fact that the public good requires that those
relations be not disturbed by unnecessary conflict between courts equally bound to
guard and protect rights secured by the [C]onstitution,” a habeas petitioner must first
exhaust his state court remedies. SKS & Assoc., Inc. v. Dart, 619 F.3d 674, 679 n.4 (7th Cir.
2010) (quoting Ex Parte Royall, 117 U.S. 241, 251 (1886)). And because “the delay has
come to a close, the comity concerns underlying the exhaustion requirement compel the
federal courts to allow the state litigation to run its course.” Vreeland, 543 Fed. App. at
742. Accordingly, in this case, Monegain must first give the Indiana appellate courts an
opportunity to pass on the federal constitutional question. Once Monegain exhausts his
state court remedies, he may timely re-file his § 2254 petition. We AFFIRM.
