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Holsey v. Conway

United States District Court, Sixth Circuit

December 31, 2013

ROGER HOLSEY, JR., Petitioner,
JACK CONWAY, Attorney General, Respondent.


HANLY A. INGRAM, District Judge.

On July 2, 2013, pro se Petitioner Roger Holsey, Jr. filed a petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. D.E. 1. On July 12, 2013, the Court ordered Respondent to respond to Petitioner's Petition within 60 days. D.E. 2. After two extensions, Respondent timely filed a Response on November 8, 2013. D.E. 8. Petitioner filed his Reply on December 16, 2013 (D.E. 10), rendering his Petition ripe for analysis. For the reasons that follow, the Court RECOMMENDS that the Petition be DENIED and that no certificate of appealability should issue.


Petitioner is currently serving a term of probation of four years in lieu of a suspended one-year sentence pursuant to an August 2, 2010 judgment of the Fayette Circuit Court entered following Petitioner's conditional guilty plea. See D.E. 8-4. Petitioner pled guilty to trafficking in marijuana, less than eight ounces, and possession of drug paraphernalia, second or greater offense. Id. The Court of Appeals of Kentucky described the facts of Petitioner's case as follows:

In June 2009, Detective J.S. Curtsinger, a Lexington Fayette Urban County Police Officer, was informed by another officer, Detective Brislin, that a "concerned citizen" suspected that narcotics were being sold from a residence located at 3685 White Pines Drive in Lexington, Kentucky. In conducting surveillance of the residence, Detective Brislin observed a white Dodge Magnum that he determined was registered to Appellant or a Kathleen Parks. Detective Curtsinger recalled seeing the same vehicle parked on numerous occasions at 460 Newbury Way, another residence located less than a mile from White Pines Drive.
On July 13, 2009, Detective Curtsinger conducted a trash pull at the Newbury Way residence and found marijuana stems, rolling papers, an empty plastic baggie contain[ing] marijuana residue, and mail addressed to Christina Hamm, Appellant's wife. The following day, Detective Curtsinger executed a search warrant on the White Pines residence and discovered not only marijuana but a large mushroom growing operation. On July 20, 2009, a second trash pull at the Newbury Way residence resulted in marijuana stems, numerous baggies containing marijuana residue, rolling papers, and mail addressed to Appellant. A subsequent criminal background investigation indicated that Appellant was on parole from 1999 convictions for first-degree robbery, first-degree burglary, possession of marijuana, and possession of drug paraphernalia. In addition, Christina Hamm had a prior conviction for trafficking in a controlled substance.
Based upon the above information, Detective Curtsinger obtained and executed a search warrant on the Newbury Way residence on July 20, 2009. Officers discovered marijuana, baggies with marijuana residue, digital scales, and other drug paraphernalia. Appellant was subsequently indicted for trafficking in marijuana within a [sic] 1000 yards of a school, possession of drug paraphernalia, second offense or greater, and for being a second-degree persistent felony offender. Following a May 2010 hearing, the trial court denied Appellant's motion to suppress all evidence found during the search. Appellant thereafter entered a conditional guilty plea to an amended charge of trafficking in marijuana less than eight ounces, as well as possession of drug paraphernalia. Pursuant to a plea agreement, the PFO charge was dismissed and Appellant was sentenced to one year imprisonment, probated for a period of four years.

Holsey v. Commonwealth, No. 2010-CA-001620-MR, at 2-3 (Ky. Ct. App. Mar. 30, 2012) (unpublished); D.E. 8-7 at 2-3.

Petitioner appealed, pro se, to the Kentucky Court of Appeals, which affirmed his conviction. See Holsey, No. 2010-CA-001620-MR, at 9; D.E. 8-7 at 9. In his brief to the Kentucky Court of Appeals, Petitioner claimed that 1) the affidavit to the search warrant of his home did not establish probable cause, resulting in a violation of Petitioner's Fourth Amendment rights as well as his rights under Section 10 of the Kentucky Constitution; 2) the use of a no-knock warrant was unreasonable; 3) the search warrant was not issued by a neutral and detached magistrate; 4) the search is not saved by the good faith exception to the exclusionary rule, and; 5) the trash pulls at his residence did not rehabilitate the affidavit to the search warrant, which lacked probable cause. See D.E. 8-5 at 13. Petitioner then appealed to the Supreme Court of Kentucky, which denied discretionary review. Holsey v. Commonwealth, No. 2012-SC-000256-D (Ky. Feb. 13, 2013); D.E. 8-8.

On July 2, 2013, Petitioner filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (D.E. 1) with an accompanying memorandum (D.E. 1-1) asserting six claims, each of which is addressed below.


In general, a state prisoner has a statutory right to collaterally attack his conviction or sentence. See West v. Bell, 242 F.3d 338, 346 (6th Cir. 2001) (stating that 28 U.S.C. § 2254 provides state prisoners with a statutory right to file a habeas corpus petitioner). A state prisoner may seek federal habeas corpus relief on the ground that he is being held in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). A petitioner must first exhaust his state court remedies before instituting a proceeding pursuant to 28 U.S.C. § 2254, unless "there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). To satisfy the exhaustion requirement, a habeas petitioner must fairly present the substance of his federal claims to the state court. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). This ensures that state courts, which have an equal obligation to protect the constitutional rights of defendants, "have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 275 (1971).

A. Standard of Review and Deference Due to State Court Decisions

The Anti-Terrorism and Effective Death Penalty Act, Pub L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA) applies to all habeas corpus petitions filed after April 24, 1996, and requires "heightened respect" for legal and factual determinations made by state courts. See Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d), as amended by AEDPA, provides:

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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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