King v. Superior Court Baldwin County State of GA. et al

Filing 28

MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall modify the docket to reflect Kings current mailing address at the United States Penitentiary - Atlanta. A copy of this Order and accompanying Judgment shall be mailed to Plaintiff at that address. 2. The motions to dismiss filed by the Judges of the Superior Court of Baldwin County, Georgia, the District Attorneys Office of Baldwin County, Georgia, and the ClerksOffice of the Superior Court of Baldwin County, Georgia (Doc. # 18 , [2 1]) are GRANTED. 3. King's complaint (Doc. # 1 ) is DISMISSED WITHOUT PREJUDICE. 4. The Court will enter a separate Judgment contemporaneously with this Order. 5. This matter is STRICKEN from the active docket of the Court. Signed by Judge David L. Bunning on 9/2/14.(SYD)cc: COR, mailed to pro se filer at USP-Atlanta

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 12-242-DLB
DERRICK D. KING

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

SUPERIOR COURT OF BALDWIN
COUNTY, GEORGIA, et al.

DEFENDANTS
*** *** *** ***

This matter is before the Court upon the motions of the Judges of the Superior Court
of Baldwin County, Georgia, the District Attorney’s Office of Baldwin County, Georgia, and
the Clerks Office of the Superior Court of Baldwin County, Georgia, to dismiss the
complaint. (Doc. # 18, 21) Plaintiff Derrick D. King has filed a response in opposition to
both motions. (Doc. # 25) The defendants have not filed any further briefing in support of
their motions, and this matter is ripe for determination.
I
King is an individual confined at the United States Penitentiary - McCreary in Pine
Knot, Kentucky.1 On June 4, 2009, King was indicted by a federal grand jury sitting in
Augusta, Georgia, for his role in a drug trafficking ring, and was charged with conspiracy
to possess with intent to distribute cocaine and cocaine hydrochloride, possession of a

1

    The federal Bureau of Prisons’ (“BOP”) online inmate locator database indicates that King is

now housed at the United States Penitentiary in Atlanta, Georgia. The Clerk of the Court will be
directed to update King’s address in the docket accordingly.
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firearm in furtherance of a drug trafficking crime, and being a felon in possession of a
firearm. The indictment predicated the felon-in-possession charge upon four of King’s prior
convictions, including two convictions on April 12, 1996, for Theft by Taking and
Aggravated Assault in Case No. 38887, and two convictions on July 7, 2000, for
Aggravated Assault and Criminal Damage to Property (First Degree) in Case No. 42207,
all in the Superior Court of Baldwin County, Georgia. United States v. King, No. 1:09-CR73-JRH-BKE-6 (S.D. Ga. 2009) (Doc. #3, p. 11 therein; see also Doc. #196, p. 6 therein).
On December 10, 2009, King signed a written agreement to plead guilty to one count
of conspiracy to distribute and possession with intent to distribute cocaine hydrochloride
and 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1), 846, and to
provide assistance to law enforcement officials in exchange for the dismissal of the
remaining charges. That agreement also included an express waiver of “the right to appeal
the conviction and sentence and the right to collaterally attack the sentence in any postconviction proceeding, including a § 2255 proceeding, on any ground” unless the sentence
imposed exceeded the statutory maximum or the advisory sentencing guideline range for
the offense of conviction. Following a sentencing hearing, on April 15, 2010, the trial court
sentenced King to a 220-month term of incarceration, slightly above the midpoint of the
guideline range.2 On direct appeal, King’s court-appointed counsel filed an Anders brief,

2

   In doing so, the trial court adopted the probation office’s determination that in light of his prior

convictions, King was a career offender within the meaning of U.S.S.G. § 4B1.1. As a result,
King’s criminal history category was VI, and when combined with a total offense level of 31, his
advisory guideline range was 188 to 235 months. See King v. United States, No. 10-11865
(11th Cir. 2010) (Brief of Appellant Derrick D. King, at pp. 2, 4-5, 11-12).
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and the Eleventh Circuit affirmed King’s conviction and sentence without elaboration on
February 4, 2011. King, Doc. #287, 331, 379 therein.
King filed his original complaint in this action pursuant to 42 U.S.C. § 1983. In it,
King indicated that he had filed a state habeas petition in the Superior Court of Baldwin
County, Georgia, in an effort to invalidate one or more of the state convictions that the
federal court used as a basis to enhance his sentence. King states that the Superior Court
set the matter on for hearing in December 2011, but alleged that the court did not notify the
BOP of the hearing or issue a writ to compel his attendance. After the date for the hearing
passed, King indicates that he made further efforts to reset the hearing and arrange for his
attendance, but was unsuccessful. King claimed that the Superior Court’s failure to arrange
for or order his attendance denied him due process of law and deprived him of meaningful
access to the courts. For relief, King did not seek damages but instead sought an order
compelling the Superior Court to hold a hearing and take sufficient steps to ensure his
attendance at it. (Doc. #1, pp. 3-5).
On August 19, 2013, this Court originally dismissed King’s complaint upon initial
screening because he made no allegation that the Superior Court refused to consider the
merits of his state habeas petition merely because he did not personally attend the hearing,
and thus failed to allege any injury flowing from the conduct complained of. (Doc. # 11)
King then filed a motion to vacate that judgment, in which he seemed to allege (for the first
time) that the Superior Court held that his presence at a hearing was necessary to
determine the merits of his habeas claims. (Doc. #13, pp. 3-4) Out of an abundance of
caution, the Court granted that motion, vacated the judgment, and ordered that the
defendants be served with process to respond to King’s claims. (Doc. #14).
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II
In their motions, defendants have asserted several grounds to dismiss the
complaint, including lack of personal jurisdiction over the Superior Court judge presiding
over King’s habeas proceeding, failure to state a claim because § 1983 does not permit
injunctive relief unless a judge violates a declaratory decree, and lack of subject matter
jurisdiction because King’s federal claims are barred by the Rooker-Feldman doctrine.
(Doc. # 18, 21). Having reviewed the arguments of the parties, the Court concludes that
it lacks personal jurisdiction over the nonresident defendants in this case, and must
therefore dismiss the case.
When a federal court exercises its jurisdiction over federal questions, it possesses
personal jurisdiction over a non-resident defendant if hailing him into court would not offend
his due process rights, and if the defendant may be served with process as permitted by
the forum state’s long-arm statute. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002).
Kentucky courts previously interpreted the state’s long-arm statute, Ky. Rev. Stat. 454.210,
to be co-extensive with the requirements of the federal due process clause. Cf. Wilson v.
Case, 85 S.W.3d 589, 592 (Ky. 2002). However, the Kentucky Supreme Court recently
overruled that line of cases, concluding that before a due process analysis is conducted,
the plaintiff’s claim must fall within one of the nine specifically-enumerated situations where
the long-arm statute applies. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51,
56 (Ky. 2011).
King contends, in essence, that Judge Hulane George of the Superior Court in
Georgia committed a constitutional tort when he failed to order King’s production and
appearance at the hearing on his state habeas claims. This claim could only conceivably
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fall within the scope of KRS 545.210(2)(a)(3) or (4), but it fails to satisfy the requirements
of either subsection. Subsection (3) for “[c]ausing tortious injury by an act or omission in
this Commonwealth” does not apply because the act or omission complained of occurred
in Georgia, not Kentucky.

Subsection (4) for “[c]ausing tortious injury in this

Commonwealth by an act or omission outside this Commonwealth” does not apply because
none of the defendants “regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used or consumed
or services rendered in this Commonwealth, ...” Because the defendants are not amenable
to service of process under Kentucky’s long-arm statute, the Court lacks personal
jurisdiction over King’s claims against them. Cf. Haley v. City of Akron, No. 5:13-CV-232,
2014 WL 804761, at *4-6 (N.D. Ohio Feb. 27, 2014) (collecting cases); Richardson v.
County of Wayne, No. 08-14248, 2009 WL 2777647, at *4-5 (E.D. Mich. Aug. 27, 2009).3
Accordingly,
IT IS ORDERED as follows:
1.

The Clerk of the Court shall modify the docket to reflect King’s current mailing

address at the United States Penitentiary - Atlanta, P.O. Box 150160, Atlanta, GA 30315.
A copy of this Order and accompanying Judgment shall be mailed to Plaintiff at that
address.
2.

The motions to dismiss filed by the Judges of the Superior Court of Baldwin

County, Georgia, the District Attorney’s Office of Baldwin County, Georgia, and the Clerks
Office of the Superior Court of Baldwin County, Georgia (Doc. # 18, 21) are GRANTED.

3

Because the Court is dismissing the complaint for lack of personal jurisdiction, it need not
address the other grounds for dismissal raised by the defendants.
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3.

King’s complaint (Doc. #1) is DISMISSED WITHOUT PREJUDICE.

4.

The Court will enter a separate Judgment contemporaneously with this Order.

5.

This matter is STRICKEN from the active docket of the Court.

This 2nd day of September, 2014.

G:\DATA\ORDERS\ProSe\King 12-242-DLB MOO.wpd

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