Ridgeway v. Commonwealth of Kentucky
Filing
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MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 4/27/2012: Clerk is directed to send Ridgeway the court-approved for and instructions for filing a 2254 petition; within 30 days Ridgeway must comply with this order; see order for specificscc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:12CV-P59-R
THOMAS RIDGEWAY
PETITIONER
v.
COMMONWEALTH OF KENTUCKY et al.
RESPONDENT
MEMORANDUM AND ORDER
Petitioner Thomas Ridgeway filed a document which he captioned a “Motion for Federal
Appellate Review” (DN 1). The motion was docketed in a separate action filed by Ridgeway,
Ridgeway v. Commonwealth of Kentucky, Civil Action No. 5:11CV-P198-R. In the motion,
Ridgeway seeks to have his state-court conviction vacated, citing the Sixth Amendment and
stating that he was denied due process, a trial by jury, and the right “to an adequate, prepared
defense.” Because the motion seeks to vacate Ridgeway’s conviction in state court, the Court
construed it as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the Clerk of
Court opened the instant action.
The filing of a petition for writ of habeas corpus under § 2254 subjects any subsequent
§ 2254 petition to the stringent restrictions on “second or successive” petitions. See 28 U.S.C.
§ 2244(b)(1) & (2).1 Thus, if a state prisoner fails to include all of his claims in an initial
§ 2254 motion, he may lose any other claims if he tries to assert them later. Therefore, the
Court will provide Ridgeway with an opportunity to voluntarily dismiss the habeas action or file
an amended § 2254 petition which includes all the claims he believes he has.
Further, the Court notes that a federal court may not grant habeas corpus relief unless the
petitioner has exhausted all available state remedies or demonstrated their inadequacies. 28
U.S.C. § 2254(b);2 Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002) (“Habeas corpus relief
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Under 28 U.S.C. § 2244(b),
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless -(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B)(I) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claims, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
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Section 2254 provides, in pertinent part:
(b)(1) An application for a writ of habeas corpus . . . shall not be granted unless it
appears that:
(A) the applicant has exhausted the remedies available in the court 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.
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is available only if the applicant first exhausts remedies available in state court.”). Exhaustion
requires that a petitioner provide the state courts with the opportunity to correct any
constitutional violations by invoking “one full round” of the state’s appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “The exhaustion requirement is satisfied
when the highest court in the state in which the petitioner was convicted has been given a full
and fair opportunity to rule on the petitioner’s claims.” Silverburg v. Evitts, 993 F.2d 124, 126
(6th Cir. 1993). A state prisoner must present the substance of every claim he intends to raise in
a § 2254 petition to all levels of state court review before pursuing relief in federal court.
However, where a prisoner’s failure to present a claim to the state court bars state court
consideration of the claim, an exception to the exhaustion requirement is made, since further
resort to the state courts would be futile. See Hannah v. Conley, 49 F.3d 1193, 1195 (6th Cir.
1995). 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).
Moreover, if Ridgeway wishes to amend his § 2254 petition, he must pay the $5.00 filing
fee or file an application to proceed without prepayment of fees.
WHEREFORE, IT IS ORDERED as follows:
(1) The Clerk of Court is directed to provide Ridgeway with the Court-approved form
and instructions to be used when seeking habeas relief under 28 U.S.C. § 2254 and a blank
application to proceed without prepayment of fees and affidavit form.
(2) Ridgeway shall notify this Court in writing whether he wishes to voluntarily
dismiss his petition or to amend it. If Ridgeway wishes to amend his petition, he must
complete the enclosed Court-approved § 2254 form, including all challenges that he wishes to
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make regarding his state sentence, and return it to the Court within 30 days from the entry of
this Memorandum and Order.
(3) If Ridgeway wishes to amend his § 2254 petition, he also shall tender the $5.00 filing
fee OR file an application to proceed without prepayment of fees within 30 days from entry of
this Memorandum and Order. Should Ridgeway wish to pay the filing fee, a check shall be
made payable to Clerk, U.S. District Court and mailed to the following address:
Office of the Clerk
United States District Court
Western District of Kentucky
601 West Broadway, Ste. 106
Louisville, KY 40202-2249
(4) Ridgeway is WARNED that failure to comply with this Memorandum and
Order within 30 days without good cause will result in dismissal of this action.
Date:
April 27, 2012
cc:
Petitioner, pro se
4413.010
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