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663 F.2d 42

Docket No. 81-1745.

Lowe v. Duckworth

Seventh Circuit Court of Appeals

Argued Sept. 11, 1981.

Decided Nov. 9, 1981.*

Seventh Circuit Court of Appeals · decided 1981-11-09

2 counsel of record

Key passage — most relied on by later courts

“[a]n application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”

quoted by 1 later decision, including Sulie v. Farley

Applies 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Yusuf Asad Madyun v. James R. Thompson, Governor · Dozie v. Cady

Good law ✅— No negative treatment on recordhow we know

Opinion by Wilbur Frank Pell Jr. · Decided 1981-11-09

How this case has been cited

Cited by 42 later decisions — most recently May 2025 · most notably Lowe v. Letsinger (1985), Lane v. Richards (1992)

22 federal appellate · 2 district ·

28019811990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*43Carlton Lowe, Park Forest South, 111., for petitioner-appellant.

¶2David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellees.

¶3Before PELL, SPRECHER, and CUDAHY, Circuit Judges.

¶5PELL, Circuit Judge.

¶6Petitioner Thad Douglas Lowe appeals from the district court’s dismissal of his petition for a writ of habeas corpus. The district court dismissed the petition for failure to exhaust state remedies. When Lowe filed his petition in district court, his post-conviction relief motion1 was still pending in state court. Lowe argued to the district court that, notwithstanding the pendency of the state court proceeding, his federal petition should not be dismissed on exhaustion grounds because his state remedy was ineffective.2 Lowe’s state motion had lain dormant for nearly three and one-half years despite his attempts, by writing to the state court judge, to obtain a ruling on his motion.

¶7The district court’s dismissal of Lowe’s petition was clearly erroneous. Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970). Where state court delay is inordinate, the district court must hold a hearing to determine whether the delay is justifiable. If it is not justifiable, the court must hear the habeas petition on its merits. Ibid.A seventeen-month delay is inordinate. Ibid.Therefore a three-and-one-half-year delay is also inordinate, triggering the above-described hearing.

¶8Since the filing of this appeal, however, Lowe’s federal habeas petition has been rendered moot. The state court before which Lowe’s state motion was pending rendered a final decision dated July 14, 1981, granting Lowe a new trial. The attorneys of record were notified of this order approximately ten days to two weeks later. On August 7, 1981, a new arraignment date was set for Lowe. On August 10, 1981, Lowe was released from prison on bond pending the new arraignment. On August 26, 1981, respondents moved to dismiss this appeal as moot. When all the relief sought has been obtained, there no longer exists a live controversy, and the case must'be dismissed as moot. Madyun v. Thompson, 657 F.2d 868, 872 (7th Cir. 1981). Lowe’s conviction has been declared null and void, and he can obtain no further remedy by way of the present habeas petition.

¶9*44The district court’s dismissal of the petition for failure to exhaust state remedies is vacated. The case is remanded to the district court with instructions to dismiss the petition as moot.

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