Blair v. Kentucky
Filing
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MEMORANDUM OPINION & ORDER: 1. Petitioner Delfon Blairs Objections to the Magistrates Report andRecommendation 16 are OVERRULED; 2. The Magistrates Report and Recommendation 13 as to Petitioner Delfon Blair is ADOPTED as and for the opinion of t he Court; 3. Mr. Blairs § 2254 petition is DENIED WITHOUT PREJUDICE; 4. All other pending motions in this matter are DENIED AS MOOT; and 5. JUDGMENT will be entered contemporaneously herewith. Signed by Judge Gregory F. VanTatenhove on 07/02/2018.(KRB)cc: COR, Delfon Blair via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON
DELFON BLAIR,
Petitioner,
V.
STATE OF KENTUCKY,
Respondent.
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2:17-cv-00151-GFVT-HAI
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MEMORANDUM OPINION
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&
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ORDER
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This matter is before the Court on Petitioner Delfon Blair’s pro se petitions for habeas
corpus relief pursuant to 28 U.S.C. § 2254. [R. 1; R. 12.] Consistent with local practice, this
matter was referred to Magistrate Judge Hanly A. Ingram, who filed a Report and
Recommendation recommending that Mr. Blair’s petition be denied without prejudice. [R. 13.]
Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after
service to register any objections to a Report and Recommendation, or else waive his rights to
appeal. In order to receive de novo review by this Court, any objection to the recommended
disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific
objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s]
problematic.” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007). A general objection that
fails to identify specific factual or legal issues from the Recommendation, however, is not
permitted, since it duplicates the Magistrate Judge’s efforts and wastes judicial economy.
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Mr. Blair filed timely objections to Judge Ingram’s Report and Recommendation. [R.
16.] Although his objections are not sufficiently specific under the above criteria, the Court
acknowledges its duty to review his filings under a more lenient standard than the one applied to
attorneys because he is proceeding pro se. See Franklin v. Rose, 765 F.2d 82, 84–85 (6th Cir.
1985). Thus, the Court is obligated to conduct a de novo review. See U.S.C. § 636(b)(1)(c).
The Court has satisfied that duty, reviewing the entire record, including the pleadings, the
parties’ arguments, relevant case law and statutory authority, as well as applicable procedural
rules. For the following reasons, Mr. Blair’s objections to Judge Ingram’s Recommendation [R.
16] and his petitions for habeas corpus relief pursuant to 28 U.S.C. § 2254 [R. 1; R. 12] are
DENIED.
I
Mr. Blair filed an initial Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 on
August 30, 3017. [R. 1.] However, after reviewing Mr. Blair’s filings, the Court found he had
not complied with the Rules Governing Section 2254 Proceedings, and ordered Mr. Blair
resubmit a corrected petition. [R. 5.] On September 13, 2017, Mr. Blair filed a Second Petition
for Writ of Habeas Corpus using the correct form. [R. 12.] He also filed various other motions:
a Motion of Jurisdiction [R. 6], a Motion of Mediation Request [R. 7], a Motion for Leave in
Corpus Criminal [R. 8], a Motion for Leave in a Civil Case [R. 9], a Motion of Mediation and of
Certified Question [R. 11], a Motion to Affirm Release on a Reconsideration of Ruling [R. 17],
Motion to Request to Move Jails [R. 18], a Motion for Reconsideration [R. 19] and two
additional Motions of Mediation [R. 20; R. 24].
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II
In his petition, Mr. Blair claims that the Kentucky courts violated his Fourteenth
Amendment rights for various procedural reasons. [R. 12 at 5.] However, Mr. Blair filed his
petition on September 14, 2017, and he indicated that the trial was not set until October 11, 2017.
Id. at 1. Additionally, Mr. Blair admitted he had not yet appealed from a judgment of conviction,
presumably because no judgment had been entered at the time. Id. at 2. Therefore, as Judge
Ingram noted, when Mr. Blair filed his petition in this Court, his case was still pending in state
court. [R. 13 at 2.]
A petition for a writ of habeas corpus under 28 U.S.C. § 2254 cannot be granted until
“the applicant has exhausted the remedies available in the courts of the State” or if such process
in state court is unavailable or “ineffective to protect the rights of the applicant.” 28 U.S.C. §
2254(b). To grant a petition under this section, the state court must have entered a judgment, a
requirement not met in Mr. Blair’s present case.
Because the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts, we conclude that state prisoners must give the state
courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 843 (1999). This requires petitioners to appeal to the
highest court of the state prior to petitioning for relief at this Court. Wilson v. Mitchell, 498 F.3d
491, 498–99 (6th Cir. 2007). In neither Mr. Blair’s petitions nor his objections to the Report and
Recommendation has Mr. Blair established exhaustion at the state court level. Therefore, Mr.
Blair does not have a right to seek review under 28 U.S.C. § 2254.
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III
This Court does not resolve Mr. Blair’s petition for habeas corpus on the merits because
it cannot resolve such a petition until Mr. Blair’s case has proceeded through the Kentucky
appellate courts. Accordingly, and the Court being sufficiently advised, it is hereby ORDERED
as follows:
1.
Petitioner Delfon Blair’s Objections to the Magistrate’s Report and
Recommendation [R. 16] are OVERRULED;
2.
The Magistrate’s Report and Recommendation [R. 13] as to Petitioner Delfon
Blair is ADOPTED as and for the opinion of the Court;
3.
Mr. Blair’s § 2254 petition is DENIED WITHOUT PREJUDICE;
4.
All other pending motions in this matter are DENIED AS MOOT; and
5.
JUDGMENT will be entered contemporaneously herewith.
This the 2d day of July, 2018.
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