Smith v. Akers

Filing 21

MEMORANDUM ORDER: (1) GRANTING IN PART & DENYING IN PART petitioner's 15 MOTION to Stay; (2) DENYING petitioner's request that the court hold this case in abeyance until he exhausts his state court remedies for his claim of ineffective assistance of counsel; (3) particularized objections to the R&R must be filed within 30 days. Signed by Judge David L. Bunning on 4/10/13.(KJR)cc: COR, Smith (US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 12-59-DLB-JGW
CHARLES SMITH

vs.

PETITIONER

MEMORANDUM ORDER

DANIEL AKERS, WARDEN
Marion Adjustment Center

RESPONDENT

*** *** *** ***
This matter is before the Court on Petitioner Charles Smith’s Request to Hold This
Action in Abeyance or, in the Alternative, Request for an Enlargement of Time in Which to
File Particularized Objections to the Magistrate’s Report and Recommendation (Doc. # 15).
More specifically, Petitioner requests that the Court hold this case in abeyance until he
exhausts his state court remedies for his claim of ineffective assistance of counsel. In the
alternative, Petitioner requests an enlargement of time to file objections to the Report and
Recommendation of Magistrate Judge Wehrman (Doc. # 14).
Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
on February 29, 2012 (Doc. # 1). In that petition, he argued that his venire panel
systematically under represented African-American jurors and thus violated the requirement
that those panels represent a “fair cross section” of the community. (Doc. # 1, at 5); (Doc.
# 1-1, at 5-13). In so doing, Petitioner challenged the constitutionality of KRS 29A.040(1),
which reads:

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A list of all persons over the age of eighteen (18) and holding valid driver's
licenses which were issued in the county, of the names and addresses of all
persons filing Kentucky resident individual income tax returns which show an
address in the county, and of all persons registered to vote in the county shall
constitute a master list of prospective jurors for a county.
The Magistrate thereafter recommended that the petition be denied, as he rejected
Petitioner’s systematic under representation argument because his claim regarding the
constitutionality of KRS 29A.040(1) was procedurally defaulted. (Doc. # 14, at 3-7). The
Magistrate further noted that Petitioner could not overcome that default because he failed
to raise an ineffective assistance of counsel claim in state court. (Id. at 6).
In light of the Magistrate’s determination, Petitioner now seeks an abeyance so he
can return to state court and pursue his unexhausted ineffective assistance of counsel
claim. Specifically, Petitioner initially wants to present his claim that his failure to comply
with KRS 418.075, which requires a party to give notice to the Kentucky Attorney General
when challenging the constitutionality of a statute, was caused by ineffective assistance of
counsel. See RCr 11.42 (“A prisoner in custody under sentence . . . who claims a right to
be released on the ground that the sentence is subject to collateral attack may at any time
proceed directly by motion in the court that imposed the sentence to vacate, set aside or
correct it.”). Once that claim is exhausted, he then wants to return to federal court and use
it to excuse his procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000)
(recognizing that counsel's ineffectiveness in failing properly to preserve a claim for review
in state court can demonstrate "cause" to excuse a procedural default).
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that district courts
have discretion, in certain circumstances, to hold a mixed petition–a petition containing
exhausted and unexhausted claims–in abeyance to allow a prisoner an opportunity to
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exhaust his claims in state court and then to return to federal court for habeas review.
However, “[a]beyance is appropriate only when the ‘petitioner had good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious, and there is no indication
that the petitioner engaged in intentionally dilatory litigation tactics.” Wiedbrauk v. Lavigne,
174 F. App'x 993, 999 (6th Cir. 2006) (quoting Rhines, 544 U.S. at 278).
Assuming Rhines is applicable,1 an abeyance is nonetheless inappropriate in this
case for two reasons. First, Petitioner has not demonstrated that he had “good cause” for
failing to collaterally attack his conviction due to ineffective assistance of counsel prior to
filing his petition. Instead, he generally asserts that he is “a pro se litigant unskilled in the
field of law and his lack of legal training has been a source of confusion relative as to how,
what, where, and when[] to make his substantive claims.” (Doc. # 15, at 4). This does not
suffice. Cf. Hale v. Chandler, No. 06-101-KKC, 2006 WL 3715781 (E.D. Ky. Dec. 14, 2006)
(holding that the petitioner demonstrated “good cause” for not pursuing his state remedy
because he had been seriously ill, which inhibited him from litigating properly).
Second, Petitioner has made no attempt to show that his constitutional challenge
is potentially meritorious. To the contrary, the Supreme Court of Kentucky has held that
an earlier version of KRS 29A.040, which “directed that the master list from which names
of prospective jurors shall be selected shall consist of the voter registration lists and the
property tax rolls for the county,” was constitutional, as it “represent[ed] an effective manner

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Respondent asserts that the petition discussed herein is not mixed, but offers no
justification for this assertion. The Court, then, will assume otherwise.

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by which to insure representative jury panels from segments of the community.”2 Ford v.
Commonwealth, 665 S.W.2d 304, 307-308 (Ky. 1983) (citations omitted). Moreover, in
Smith v. White, No. 3:11-CV-570-C, 2012 WL 3961233, at *12-13 (W.D. Ky. Aug. 7, 2012),
Magistrate Judge Dave Whalin concluded that the petitioner therein could not satisfy the
standard for habeas relief because fair-minded jurists could reasonably debate the
Kentucky Court of Appeals application of Duren v. Missouri, 439 U.S. 357 (1979), i.e., that
the petitioner “failed to demonstrate that the method for selection of the jury pool under
KRS 29A.040 was unreasonable, or that any systemic exclusion of a distinctive group had
resulted from the use of this statutory method of selection.” The Magistrate’s report and
recommendation was subsequently adopted by the Western District of Kentucky in Smith
v. Warden, No. 11-570-C, 2012 WL 3947609 (W.D. Ky. Sept. 10, 2012).
Because he has neither demonstrated “good cause” nor made any attempt to show
that his constitutional challenge is potentially meritorious, the Court declines to hold this
case in abeyance while Petitioner returns to state court and pursues his unexhausted claim.
However, he will be given an additional thirty (30) days to file particularized objections to
the R&R, as Respondent does not oppose Petitioner receiving additional time to respond.
Accordingly,
IT IS ORDERED as follows:
(1)

Petitioner’s Request to Hold This Action in Abeyance or, in the Alternative,
Request for an Enlargement of Time in Which to File Particularized

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As Respondent points out, the Sixth Circuit later affirmed denial of the defendant’s
subsequent habeas petition in Ford v. Seabold, 841 F.2d 677 (6th Cir. 1988). However, the federal
court did not directly comment on the constitutionality of KRS 29A.040 in rendering its decision.

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Objections to the Magistrate’s Report and Recommendation (Doc. # 15) is
GRANTED IN PART and DENIED IN PART;
(2)

Petitioner’s request that the Court hold this case in abeyance until he
exhausts his state court remedies for his claim of ineffective assistance of
counsel is DENIED;

(3)

Particularized objections to the Report and Recommendation of Magistrate
Judge Wehrman (Doc. # 14) must be filed with the Clerk of the Court within
thirty (30) days of the date of entry of this Order.

This 10th day of April, 2013.

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