Goben v. Bolton

Filing 6

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 3/27/13; based on Petitioners failure to respond to the show cause order, the Court finds that dismissal without prejudice is warranted. A separate Order will be entered.cc: Petitioner, pro se, Respondent, Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals, 1024 Capital Center Drive, Frankfort, KY 40601 (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
KENNETH GOBEN
v.

PETITIONER
CIVIL ACTION NO. 3:12-CV-P496-S

MARK BOLTON

RESPONDENT

MEMORANDUM OPINION
Petitioner, Kenneth Goben, filed the instant petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 as well as two others on the same day, each relating to a different state-court
conviction. See DN 1; Goben v. Bolton, 3:12-CV-P495-H; Goben v. Bolton, 3:12-CV-P497-S.
To warrant relief under § 2241, a petitioner is required to exhaust his state remedies prior to
bringing such an action. Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981). Unless unusual
or exceptional circumstances make it appropriate to reach the merits of a claim not first
exhausted in the state court, the habeas petition should be dismissed. Granberry v. Greer, 481
U.S. 129, 134 (1987); O’Guinn v. Dutton, 88 F.3d 1409, 1413 (6th Cir. 1996) (en banc).
Because it appeared from the petitions that Petitioner had not pursued his state-court
remedies, in each case Petitioner was ordered to show cause why his petition should not be
dismissed for failure to exhaust his state-court remedies. Petitioner did not file a response in this
case. However, in No. 3:12-CV-P495-H Petitioner responded with a motion to withdraw his
petition so as to present his unexhausted claims to the state court before returning to this Court.
He acknowledged in that motion that he had not yet exhausted his claims in state court. His
motion was granted, and his petition was dismissed without prejudice.
Accordingly, in the instant case, based on Petitioner’s failure to respond to the showcause order, the Court finds that dismissal without prejudice is warranted. A separate Order will

be entered.
Date:

March 27, 2013

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cc:

Petitioner, pro se
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals,
1024 Capital Center Drive, Frankfort, KY 40601
4411.009

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