Russell v. Smith
Filing
13
MEMORANDUM AND OPINION by Judge Greg N. Stivers on 7/24/2017; a separate order shall issue.cc:petitioner pro se, respondent, Attorney General of KY (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CLARENCE L. RUSSELL
PETITIONER
v.
CIVIL ACTION NO. 5:17-CV-P55-GNS
WARDEN AARON SMITH
RESPONDENT
MEMORANDUM OPINION
Petitioner Clarence L. Russell filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 with an attached statement of claims (DN 1). The petition is before this Court
for preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. For the reasons set forth below, the Court will dismiss this action
for failure to exhaust all available state court remedies.
I.
The petition indicates that Russell is challenging his conviction in the Fulton County
Circuit Court in which he was sentenced on January 27, 2010, in Case No. 09-CR-00045 to
fifteen years in prison for sexual abuse in the first degree, criminal attempt, unlawful transaction
with a minor, and terroristic threatening. On his § 2254 petition form, Russell indicates that in
January 2017 he filed in that Fulton Circuit Court criminal case a petition, application, or motion
raising claims related to due process. Elsewhere on the form, he indicates that he has filed “a
11.42 an 60.02 in Fulton County Circuit Court, Ky. Wait answer from court.”
II.
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; Hannah v.
1
Section 2254(b)(1) states in pertinent part:
Conley, 49 F.3d 1193, 1196 (6th Cir. 1995) (per curiam). Any alleged constitutional
deprivations must be asserted through the state appellate process. O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). “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, [the Supreme Court] conclude[s] 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.” Id. 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, Russell’s § 2254 petition clearly indicates that he has post-conviction motions
challenging his convictions pending in state court. Although a federal court may stay a federal
habeas petition and hold further proceedings in abeyance pending resolution of state court postconviction proceedings in limited circumstances, Rhines v. Weber, 544 U.S. 269, 277-78 (2005),
when a federal habeas corpus petition contains solely unexhausted grounds for relief, as is the
case here, the court should dismiss the federal habeas corpus petition without prejudice. See
Dewey v. Horton, No. 2:17-cv-1-0694, 2017 WL 1151158, at *3 (E.D. Mich. Mar. 28, 2017)
(citing Raspberry v. Garcia, 448 F.3d 1150 (9th Cir. 2006)); United States v. Hickman, 191 F.
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.
2
App’x 756, 757 (10th Cir. 2006) (“Traditionally, when a petition contains entirely unexhausted
state claims, the petition would be dismissed without prejudice . . . stay and abeyance of totally
unexhausted petitions increases the temptation to decide unexhausted claims and decreases the
incentive to exhaust first.”); McDonald v. Bell, No. 1:06-cv-406, 2009 WL 1525970 (W.D.
Mich. June 1, 2009) (dismissing petition after concluding that the stay and abeyance procedure
does not apply to a habeas petition containing only unexhausted claims); Mimms v. Russell, No.
1:08-cv-79, 2009 WL 890509 (S.D. Ohio Mar. 31, 2009) (finding habeas petition subject to
dismissal where petitioner did not exhaust any of his state court remedies on any of the claims
presented in the petition); Wilson v. Warren, No. 06-cv-15508, 2007 WL 37756, at *2 (E.D.
Mich. Jan. 4, 2007) (“[I]n this case, a stay of petitioner’s application for a writ of habeas corpus
would be inappropriate, because all of petitioner’s claims are unexhausted and thus, the Court
lacks jurisdiction over the petition while the petitioner pursues his claims in state court.”).
III.
The Court further notes that many of the allegations Russell makes in the instant action
concern claims for damages or relate to conditions of confinement which this Court does not
consider in this habeas proceeding. These claims must be raised in a complaint filed under 42
U.S.C. § 1983. Therefore, the Court will dismiss the instant petition without prejudice by
separate Order. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (stating that habeas
petitions alleging a denial of a federal right by a state actor “have been dismissed without
prejudice to a petitioner’s potential § 1983 claims, allowing the prisoner to later bring any civil
rights claims properly”).
The Clerk of Court is DIRECTED to send a 42 U.S.C. § 1983 form to Russell should he
wish to raise these civil-rights claims in a separate § 1983 action.
3
CERTIFICATE OF APPEALABILITY
An individual who unsuccessfully petitions for writ of habeas corpus in a federal district
court and subsequently seeks appellate review must secure a certificate of appealability (COA)
from either “a circuit justice or judge” before the appellate court may review the appeal.
28 U.S.C. § 2253(c)(1). A COA may not issue unless “the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
483 (2000).
When a district court denies a petition on procedural grounds without addressing the
merits of the petition, a COA 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, 529 U.S. at 484.
When a plain procedural bar is present and a court is correct to invoke it to dispose of the
matter, a reasonable jurist could not conclude either that the 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 that no jurist of reason could find its procedural ruling to
be debatable. Thus, no certificate of appealability is warranted in this case.
Date:
July 24, 2017
Greg N. Stivers, Judge
United States District Court
cc:
Petitioner, pro se (w/ § 1983 packet)
Respondent
Attorney General, Commonwealth of Kentucky, Office of Criminal Appeals,
1024 Capital Center Drive, Frankfort, KY 40601
4416.009
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?