McWain v. Commonwealth of Kentucky

Filing 5

MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 10/28/2015: Because the Court lacks subject-matter jurisdiction over Movant's Appeal, the Court will dismiss the action by separate Order. The Clerk of Court is DIRECTED to send Movant another 28 U.S.C. § 2254 packet for Movant to utilize should he wish to file a habeas petition in this Court. cc:counsel, Movant (pro se) w/ 2254 packet, Atty General (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
BRANDON McWAIN

MOVANT

v.

CIVIL ACTION NO. 4:15-CV-P140-JHM

COMMONWEALTH OF KENTUCKY

RESPONDENT

MEMORANDUM OPINION
This matter is before the Court regarding a motion filed by Movant entitled “Motion for
Belated Appeal.” (DN 1). In this Motion, Movant asks the Court to “grant him a belated appeal
from the Kentucky Supreme Court ruling under indictment number 07-CR-220.” The Court
notes that the Movant has also filed a Motion for Leave to Proceed in forma pauperis. (DN 4).
The records Movant submitted with his Motion indicate that he entered a guilty plea to
the charges of first-degree arson and second-degree burglary on September 5, 2008, in the
Rowan County (Kentucky) Circuit Court. (DN 1, Ex. 2, Motion for Discretionary Review of a
Decision of the Court of Appeals). The records further indicate that on March 4, 2010, Movant
filed a pro se Motion to Vacate Sentence for ineffective assistance of counsel and coercion in
pleading guilty, and that the Rowan County Circuit Court denied the Motion to Vacate Sentence
on June 25, 2010. (Id.) Movant then appealed this decision to the Kentucky Court of Appeals
but the Court of Appeals affirmed the trial court’s decision in an unpublished opinion rendered
on November 30, 2012. (Id.) The most recent state records submitted by Movant indicate that
he then filed a Motion for Discretionary Review of the Court of Appeals’ decision with the
Kentucky Supreme Court on January 2, 2013, and that the Office of the Kentucky Attorney
General filed a response to this Motion on February 1, 2013, submitting that this motion be
denied. (DN 1, Ex. 3, Response to Motion for Discretionary Review). In the Motion now before

the Court, Movant seems to indicate that he understands the Attorney General’s Response to
Motion for Discretionary Review to constitute a denial of his Motion for Discretionary Review
by the Kentucky Supreme Court. (DN 1, ¶ 6). It is the Court’s understanding that it is this
perceived ruling by the Kentucky Supreme Court which Movant now seeks to appeal in this
Court.
Movant also indicates that his Motion is “belated” and that it is such because he filed a
Petition for Writ of Habeas Corpus in this Court on December 13, 2013, but received no
response. However, as the records filed by Movant indicate, the Western District of Kentucky
Clerk of Court (Clerk) has twice responded to letters written by the Movant seeking information
on this supposed habeas action. On June 16, 2014, the Clerk’s Office sent a letter to Movant
explaining to him that he had no pending action in the Court but that if he sought to file a habeas
action, he could do so by utilizing the enclosed 28 U.S.C. § 2254 packet and copy of the Pro Se
Prisoner Handbook. Similarly, on May 12, 2015, the Clerk’s Office sent another letter to
Movant explaining that it had never received a habeas petition filed by him. In the letter, the
Clerk further opined that, based on Movant’s records, the Clerk’s Office never received his
petition because it was sent to the wrong address.
Regardless of whether Movant’s Motion is belated or not, this Court is without
jurisdiction to entertain an appeal from a state court. “The Rooker-Feldman doctrine, named for
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983),
stands for the proposition that a party aggrieved by a state-court decision cannot appeal that
decision to a district court, but must instead petition for a writ of certiorari from the United States
Supreme Court.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). “[W]hen the federal

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courts are asked to ‘engage in appellate review of state court proceedings,’ the doctrine
necessarily applies.” Id.; Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 462 (6th Cir.
2003) (“[T]he Rooker-Feldman doctrine [] appl[ies] to interlocutory orders and to orders of
lower state courts.”). Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, “[i]f the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.”
Thus, because the Court lacks subject-matter jurisdiction over Movant’s “Appeal,” the
Court will dismiss the action by separate Order. The Clerk of Court is DIRECTED to send
Movant another 28 U.S.C. § 2254 packet for Movant to utilize should he wish to file a habeas
petition in this Court.
Date:

October 28, 2015

cc: Movant, pro se
Attorney General, Commonwealth of Kentucky
4414.011

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