Lawrence v. Smith et al

Filing 17

MEMORANDUM OPINION by Judge Greg N. Stivers. On preliminary review of the 28 U.S.C. § 2254 habeas petition, the action will be dismissed by separate Order for failure to exhaust available state remedies, and a certificate of appealability will be denied. cc: Petitioner, pro se; Respondent; KY AG (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
CIVIL ACTION NO. 1:14CV-P177-GNS

MARCUS J. LAWRENCE SR.

PETITIONER

v.
AARON SMITH et al.

RESPONDENTS
MEMORANDUM OPINION

Petitioner Marcus J. Lawrence Sr. filed a pro se petition and amended petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (DNs 1 & 14). The § 2254 petitions are before the Court
for preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts.
In the petitions, Petitioner reports that he was convicted and sentenced by the Warren County
Circuit Court on February 5, 2014, for the crimes of using, buying, selling, and tampering with drugs
(Case No. 2012-CR-00150). Despite asserting that he has exhausted his available state remedies,
Petitioner indicates that he filed a direct appeal of his conviction to the Kentucky Court of Appeals
(Case No. 2014-CA-00315) and has received “no answer & no result.” The Court takes judicial notice
of the Kentucky Court of Appeals’ public docket sheet for Petitioner’s appeal, see
http://apps.kycourts.net/Appeals/COA_Dockets.shtm, which reveals that his appeal is still pending.
It is axiomatic that one may not seek federal habeas corpus relief until he has exhausted all
available state remedies or demonstrated their inadequacies. 28 U.S.C. § 2254(b);1 Martin v. Mitchell,

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Under § 2254(b)(1),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

280 F.3d 594, 603 (6th Cir. 2002) (“Habeas corpus relief is available only if the applicant first exhausts
remedies available in state court.”). As the Supreme Court in O’Sullivan v. Boerckel explained:
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, 845 (1999). Under Kentucky Rule of Criminal Procedure 12.05,
In all appeals from criminal convictions or post-conviction relief matters a litigant
shall not be required to petition for rehearing or to file a motion for discretionary
review to either the Kentucky Court of Appeals or Kentucky Supreme Court
following an adverse decision of either the circuit court or Court of Appeals in
order to be deemed to have exhausted all available state remedies respecting a
claim of error. Rather, when the claim has been presented to the appellate court,
and relief has been denied, the litigant shall be deemed to have exhausted all
available state remedies available for that claim. If rehearing or discretionary
review is sought on less than all of the claims of error presented on appeal, the
litigant, nevertheless, shall be deemed to have exhausted all available state
remedies respecting the claim(s) of error for which rehearing or discretionary
review is not sought. Finality of the opinion for all claims of error is governed by
CR 76.30(2).
The burden is on the petitioner to demonstrate compliance with the exhaustion requirement or that the
state procedure would be futile. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Because Petitioner admits, and the Kentucky Court of Appeals’ docket sheet confirms, that his
appeal is still pending, it is obvious that Petitioner has failed to exhaust his state remedies prior to
filing this habeas action. As a matter of comity, this Court will not consider Petitioner’s constitutional
claims as long as he has an available state forum. See O’Sullivan v. Boerckel, 526 U.S. at 844
(“Comity thus dictates that when a prisoner alleges that his continued confinement for a state court
conviction violates federal law, the state courts should have the first opportunity to review this claim
and provide any necessary relief. ”).

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By separate Order, therefore, the habeas petition and its amendment will be dismissed without
prejudice. Once Petitioner has completely exhausted his available state remedies, he may file a new
habeas petition in this Court.
Before Petitioner may appeal this Court’s decision, a certificate of appealability must issue. 28
U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). When a district court denies such a
motion on procedural grounds without addressing the merits of the petition, a certificate of
appealability should issue if the petitioner shows “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. at 484. If the petition was denied on procedural grounds, both showings must be made before
a certificate of appealability should issue and the matter be heard on appeal. Id. “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id. In such a case, no appeal is warranted. Id.
The Court is satisfied in the instant case that no jurists of reason could find its ruling to be
debatable. A certificate of appealability must, therefore, be denied.
The Court will enter an Order consistent with this Memorandum Opinion.
Date:

cc:

August 19, 2015

Greg N. Stivers, Judge
United States District Court

Petitioner, pro se
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive,
Frankfort, KY 40601
4416.005

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