Smith v. Bolton

Filing 8

MEMORANDUM OPINION by Judge David J. Hale. Court will deny the § 2241 petition, deny a certificate of appealability, and dismiss the action. cc: counsel, petitioner, respondent, Jeff Co. Atty (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CHRIS D. SMITH,

Petitioner,

v.

Civil Action No. 3:16-cv-P528-DJH

MARK BOLTON,

Respondent.
* * * * *
MEMORANDUM OPINION

Petitioner Chris D. Smith has filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 (DN 1). The Court must undertake a preliminary review of the petition to
determine whether “it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” Rule 4 of the Rules Governing § 2254
Cases.1 If the petitioner is not entitled to relief, the petition must be summarily dismissed. Upon
review, the Court will summarily dismiss the § 2241 petition.
I.
Smith is presently incarcerated in the Hart County Jail on Kentucky state-court charges.
In his § 2241 petition, Smith states that he is challenging a “Jefferson county circuit court” case,
case number “15CR3020.” He states his first ground for relief as “Relief of bail;\ unlawfull
custody; #1st U.S. Const. plus Ky. const. 16- And 8th/U.S. const.” He sets forth the supporting
facts as follows: “was Excessive Bail By Commonwealth of Kentucky law, Detective Mark
Moore stated suspect acted in self Defense stated in District court #103/-10-9-15 DVD record.”
His second ground for relief is “Excessive Bail By com. of Ky.” In support thereof, he states as
follows: “Commonwealth of Kentucky Raised Bond Back to $50,000-10-9-2015 Record of
Facts of District court statement of Detective Mark Moore stated suspect acted in self Defense;
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Rule 4 applies to § 2241 petitions pursuant to Rule 1(b) of the Rules Governing §2254 cases.

Com. of Ky Lowered Bond Back to 10% 5,000.” The relief Smith seeks is “Grant freedom;
Relief of federal - - authorities unlawfull Detainer Based on record as stated Grant Release; Plus
Immunitie. Requesting Immediate-Release.”
II.
Title 28 United States Code § 2241(c) states, in relevant part, as follows:
The writ of habeas corpus shall not extend to a prisoner unless—
(1) He is in custody under or by color of the authority of the United States . . . ; or
(2) He is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of the
United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the
United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for
an act done or omitted under any alleged right, title, authority, privilege,
protection, or exemption claimed under the commission, order or sanction of any
foreign state, or under color thereof, the validity and effect of which depend upon
the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
28 U.S.C. § 2241(c). In the present case, Smith states that the charges against him in Jefferson
Circuit Court, case number 15CR3020, were dismissed on June 27, 2016. Thus, he is not in
custody on the case which he states he is challenging. “[T]he essence of habeas corpus is an
attack by a person in custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484
(1973); see also Peyton v. Rowe, 391 U.S. 54, 58 (1968) (“The writ of habeas corpus is a
procedural device for subjecting executive, judicial, or private restraints on liberty to judicial
scrutiny.”). Since he is not in custody on the conviction he is challenging, a writ of habeas
corpus is not available to him, and his petition for such will be denied. See Carafas v. LaVallee,
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391 U.S. 234, 238 (1968) (“The federal habeas corpus statute requires that the applicant must be
‘in custody’ when the application for habeas corpus is filed.”); Ward v. Knoblock, 738 F.2d 134,
136-37 (6th Cir. 1984) (holding that Ward, who was incarcerated on federal charges, but was
challenging a state conviction whose sentence had expired, was not in custody).
In his petition, Smith refers to an “unlawfull” federal detainer but does not provide any
other details regarding the detainer. Thus, this Court ordered the United States to respond to the
petition for writ of habeas corpus. The United States Attorney for the Western District of
Kentucky represents that “[t]here is no charged federal criminal case involving this Chris D.
Smith nor any federal detainer on same” (DN 6). Further, the fact that a detainer has been
lodged against Smith on another charge is insufficient to meet the in-custody requirement. Ward
v. Knoblock, 738 F.2d at 137-39 (finding that the fact that the state had lodged a detainer against
plaintiff on another charge was insufficient to meet the in-custody requirement when plaintiff
was challenging a conviction that had already been discharged).
Smith has failed to meet the in-custody requirement of § 2241; thus, his petition will be
denied on this basis.
There is another reason that this § 2241 petition must be denied. To warrant relief under
§ 2241, a petitioner is required to exhaust his state remedies prior to bringing such an action.
Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489 (1973); Atkins v. Michigan,
644 F.2d 543, 546 (6th Cir. 1981). “[T]he doctrine of exhaustion of state remedies has
developed to protect the state courts’ opportunity to confront initially and resolve constitutional
issues arising within their jurisdictions and to limit federal judicial interference in state
adjudicatory processes.” Atkins v. Michigan, 644 F.2d at 546; see also Rose v. Lundy, 455 U.S.
509, 518 (1982). “A rigorously enforced total exhaustion rule will encourage state prisoners to

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seek full relief first from the state courts, thus giving those courts the first opportunity to review
all claims of constitutional error.” Rose v. Lundy, 455 U.S. at 518-19. 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). 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).
Here, Smith indicates on his petition that he has appealed the conviction he is
challenging. However, where he is to provide information regarding the appeal, he lists a
“Jefferson county District court” case and a “Jefferson county circuit court case.” Both cases
listed by Smith have different case numbers than the case number he states he is challenging in
the present habeas petition. He fails to state he filed any appeal with the Kentucky Court of
Appeals. As to the challenged conviction in Jefferson Circuit Court, case number 15CR3020,
the records of the Kentucky Court of Justice show that Smith was indicted on those charges on
November 18, 2015, and the case was dismissed on June 28, 2016. The record does not reveal
any appeal of the case Smith is challenging. Given that only nine months transpired from the
time Smith was indicted on the Kentucky charge he is challenging and the filing of the present
action, August 17, 2016, it is unlikely that Smith exhausted his remedies through the Kentucky
courts prior to the filing of this action. “[S]tate 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).
Thus, denial of this § 2241 petition is warranted on this basis as well.

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Certificate of Appealability
Before Smith 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 underlying constitutional
claim, 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.
For the reasons stated herein, the Court will deny the § 2241 petition, deny a certificate of
appealability, and dismiss this action.
Date:

January 19, 2017

David J. Hale, Judge
United States District Court

cc:

Petitioner, pro se
Respondent
Jefferson County Attorney
4415.003

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