Lawson v. Smith
Filing
31
MEMORANDUM OPINION & ORDER: (1) That Petitioner's motion for reconsideration be, and the same hereby is, GRANTED. (2) That the Magistrate's Report and Recommendation (except for that portion which recommends dismissal of claims IIII for failure to exhaust his state court remedies) be, and it hereby is, ADOPTED as the Court's. (3) Lawson's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [DE 1 ] is DISMISSED WITH PREJUDICE; (4) Lawson's request for an ev identiary hearing is DENIED; (5) Lawson's request for a certificate of appealability is DENIED; (6) Judgment is entered in favor of Respondent; and the Clerk SHALL STRIKE THIS MATTER FROM THE ACTIVE DOCKET. Signed by Judge Joseph M. Hood on 10/17/2018.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
LESLIE LAWSON,
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
AARON SMITH,
Respondent.
Civil Case No.
6:15-cv-38
MEMORANDUM OPINION and ORDER
***
This matter is before the Court on Petitioner’s motion for
partial reconsideration of its earlier Memorandum Opinion and
Order of July 26,2018 [DE 28].
In the earlier Memorandum Opinion and Order, Petitioner’s
petition for a writ of habeas corpus under 28 U.S.C. § 2254 was
denied, in part because the Petitioner had failed to exhaust his
state court remedies on his claims I-III by seeking discretionary
review of the decision of the Kentucky Court of Appeals by the
Kentucky Supreme Court. Lawson asserts he was not required to seek
such discretionary review to exhaust these claims for purposes of
federal habeas review.
Lawson is correct.
Kentucky Rule of Criminal Procedure (RCr)
12.05 provides that moving for discretionary review is not required
for
purposes
of
exhausting
respecting a claim of error.”
“all
available
state
remedies
This rule is consistent with that
considered by the Sixth Circuit in Adams v. Holland, 330 F.3d 398
(6th Cir. 2003), and this same result has been reached by both
this Court and the United States District Court for the Western
District of Kentucky. See Blevins v. White, 10-CV-07-GFVT, 2014 WL
7004976 at *10, fn. 4 (E.D.Ky. Dec. 10, 2014) and Willis v. Haney,
07-CV-157-R, 2008 WL 1743509 at *9 (W.D.Ky. April 11, 2008).
The Court agrees Lawson’s failure to present Claims I-III to
the Kentucky Supreme Court by way of a motion for discretionary
review does not render the claims unexhausted and procedurally
defaulted, and therefore will aside that portion of the earlier
Memorandum Opinion and Order denying relief on Petitioner’s claims
I-III on that ground.
Nevertheless, the magistrate judge properly recommended that
the claims be rejected in her Report and Recommendation [DE 19].
Specifically, the magistrate judge correctly recommended claims I
and III be found procedurally defaulted because – while the claims
were raised in Lawson’s pro se RCr 11.42 motion in the trial court
– the claims were not raised in his appeal from the trial court’s
denial of that motion [DE 19].
Further, Martinez v. Ryan, 566
U.S. 1 (2012), did not apply to excuse the default because it was
applicable
only
to
ineffective
assistance
of
post-conviction
counsel during the trial court proceedings not during the appeal
from those proceedings [DE 19]. This determination was upheld by
the United States Supreme Court. Davila v. Davis, 137 S.Ct. 2058
(2017).
Moreover, even though the magistrate judge found claims I and
III to be procedurally defaulted, she went on to conclude that
these claims as well as claim II did not warrant relief under
either
the
restrictions
reviewed de novo.
of
AEDPA
deferential
review
or
when
Upon a fresh examination of the magistrate
judge’s Report and Recommendation, the Court agrees.
Accordingly,
IT IS ORDERED herein as follows:
(1)
That Petitioner’s motion for reconsideration be, and the
same hereby is, GRANTED.
(2)
That the Magistrate’s Report and Recommendation (except
for that portion which recommends dismissal of claims IIII for failure to exhaust his state court remedies) be,
and it hereby is, ADOPTED as the Court’s.
(3)
Lawson’s Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 [DE 1] is DISMISSED WITH PREJUDICE;
(4)
Lawson’s request for an evidentiary hearing is DENIED;
(5)
Lawson’s request for a certificate of appealability is
DENIED;
(6)
Judgment is entered in favor of Respondent; and the
Clerk SHALL STRIKE THIS MATTER FROM THE ACTIVE
DOCKET.
This the 17th day of October, 2018.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?