Phar v. 14th Circuit Court Of Kentucky et al
MEMORANDUM OPINION & ORDER: IT IS ORDERED that Petitioner Phar's Petition 1 is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Clerk shall send a copy of this order to Phar at listed address.. Signed by Judge Joseph M. Hood on 4/26/2017.(GLD)cc: COR, Pro se Petitioner via U.S. Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ROSS “WORD” PHAR,
14TH CIRCUIT COURT OF KENTUCKY
and THE HONORABLE JUDGE PAUL
Civil Case No.
Petitioner Ross “Word” Phar, proceeding pro se, has filed a
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
[DE 1] against the 14th Circuit Court of Kentucky and The Honorable
Judge Paul Isaacs.1
Phar, a defendant in one of Judge Isaacs’s
criminal cases, seeks relief from his five-year term of pretrial
diversion, which requires him to comply with a host of conditions
imposed by the Court and enforced by the Office of Probation and
See Commonwealth v. Phar, 12-CR-134.
Although Phar named the 14th Circuit Court of Kentucky as Defendant, such an
entity does not actually exist. Thus, the Court presumes that Phar intended to
sue the 14th Judicial Circuit of Kentucky, which includes the Woodford Circuit
Court. Judge Isaacs presides over a criminal docket in the Woodford Circuit
Under Kentucky law, the parties TO a criminal case “may agree, subject to the
approval of the trial court, that the prosecution will be suspended for a
specified period after which it will be dismissed on the condition that the
defendant not commit a crime during that period, or other conditions agreed
upon by the parties.” RCr 8.04; see also Ky. Rev. Stat. Ann. § 533.250. Phar
argues that the length of his term is “grossly excessive and
[Id. at 1].
For the reasons stated herein,
Phar’s Petition [DE 1] must be DISMISSED WITHOUT PREJUDICE.
28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons,
419 F. App’x 544, 545 (6th Cir. 2011).
A petition will be denied
“if it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.”
Rule 4 of the
Rules Governing § 2254 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)).
evaluates Phar’s Petition under a more lenient standard because he
is not represented by an attorney.
Erickson v. Pardus, 551 U.S.
89, 94 (2007). At this stage of the proceedings, the Court accepts
Phar’s factual allegations as true and construes all legal claims
in his favor.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
“Writs of habeas corpus may be granted by the Supreme Court,
any justice thereof, the district courts and any circuit judge
and his attorney reached such an agreement with the Commonwealth’s Attorney,
and Judge Isaacs approved it.
Phar does not explicitly state that the length of his term is unconstitutional.
For purposes of screening, the Court will presume, without deciding, that Phar’s
argument is predicated on a violation of his federal constitutional rights,
thereby allowing him to use § 2241. See 28 U.S.C. § 2241(c)(3) (“The writ of
habeas corpus shall not extend to a prisoner unless … [h]e is in custody in
violation of the Constitution or laws or treaties of the United States.”);
Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the
writ on the basis of a perceived error of state law.”).
within their respective jurisdictions.”4
28 U.S.C. § 2241(a).
However, before seeking relief under § 2241, the petitioner must
exhaust his state court remedies.
295 n. 1 (6th Cir. 2001).
Urbina v. Thoms, 270 F.3d 292,
“[T]he doctrine of exhaustion of state
remedies has developed to protect the state courts’ opportunity to
Michigan, 644 F.2d 543, 546 (6th Cir. 1981).
“The burden is on
requirement or that the state procedure would be futile.”
Zent, 17 F.3d 155, 160 (6th Cir. 1994).
previously sought relief in the Woodford Circuit Court. He states:
I will be presenting these grounds in court today
In the instance that I am not granted
relief, however I would like for this appeal to be heard
by the higher court. This writ is my backup plan.
“Although § 2241(c)(3) indicates that a writ will only issue to prisoners who
are in custody, “the ‘in custody’ language [does] not requirethat a prisoner
be physically confined in order to challenge his sentence on habeas corpus.”
Maleng v. Cook, 490 U.S. 488, 491 (1989). For instance, the Supreme Court of
the United States has held that a prisoner who was placed on parole was still
“in custody,” for purposes of § 2241, because his “release from physical
confinement … was explicitly conditioned on his reporting regularly to his
parole officer, remaining in a particular community, residence, and job, and
refraining from certain activities.” Id. (citing Jones v. Cunningham, 371 U.S.
Because Phar’s pretrial diversion subjects him to similar
restrictions, the Court concludes that he is “in custody,” for purposes of this
[Id. at 7].
The Court has reviewed the Woodford Circuit Court
docket from April 5, 2017, but sees no indication that Phar orally
requested relief from his term of pretrial diversion during the
There is also nothing in the court record or in Phar’s
filings to suggest that he is pursuing other available state
remedies, such as filing a petition for writ of habeas corpus in
the Woodford Circuit Court.
Ann. § 419.020.
See Ky. Const. § 16; Ky. Rev. Stat.
Because Phar has failed to demonstrate that he
Accordingly, for the reasons stated herein,
IT IS ORDERED that Petitioner Ross Phar’s Petition [DE 1] be,
and is, hereby DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of the Court shall send
a copy of this Memorandum Opinion and Order to Phar at his listed
This the 26th day of April, 2017.
In addition to his concerns about pretrial diversion, Phar briefly notes that
his “rights were violated while awaiting trial.” [Id. at 2]. These allegations
have already been dealt with in a separate civil case, Phar v. Commonwealth of
Kentucky, 14th Judicial Circuit Court, 5:17-cv-159, and thus, merit no further
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