United States District Court, E.D. Kentucky, Central Division, Frankfort
HANLY A. INGRAM, Magistrate Judge.
On July 20, 2014,  pro se Petitioner Rafael Martinez-Aguilar filed a petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. D.E. 1. Pursuant to local practice and 28 U.S.C. § 636(b)(1)(B), this matter was referred to the undersigned for a recommended disposition. After conducting a preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings, the Court found the petition to be procedurally improper. D.E. 2. To wit, Petitioner did not name the state officer who has custody of him as required by Rule 2(a). Id. at 1. Moreover, the Court expressed uncertainty as to whether Petitioner had exhausted his statecourt remedies as required by 28 U.S.C. § 2254(b). Therefore, on July 25, 2014, the Court entered an Order requiring Petitioner to show cause, if any, why his Petition should not be dismissed without prejudice for failure to satisfy the exhaustion requirement of 28 U.S.C. § 2254(b) and warned that a failure to comply would result in a recommendation of dismissal. Id at 2. Although Petitioner's response was due by August 25, 2014, he has failed to respond to the Court's Order.
Rule 4 of the Rules Governing Section 2254 cases specifically instructs trial courts that "[i]f it plainly appears from the petition... that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4 of the Rules Governing Section 2254 Cases.
Under section 2254(b),
(1) 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
(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.
28 U.S.C. § 2254(b). "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." Wilson v. Mitchell, 498 F.3d 491, 498-99 (6th Cir. 2007) (citing Lott v. Coyle, 261 F.3d 594, 601 (6th Cir. 2001)) (internal quotation marks omitted).
Petitioner's Petition indicates that he did not file a direct appeal in the Kentucky state courts, nor has he filed a motion for habeas relief in the Kentucky state courts. D.E. 1. Accordingly, Petitioner's claims have not been presented to the highest court in the state of Kentucky, and therefore are all unexhausted.
Accordingly, the undersigned RECOMMENDS that the Petition (D.E. 1) be DISMISSED WITHOUT PREJUDICE for failure to satisfy the exhaustion requirement of 28 U.S.C. § 2254(b).
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights and mechanics concerning this Recommended Disposition, issued under subsection (B) of the statute. See also Rules Governing Section 2254 Proceedings, Rule 8(b). Within fourteen days after being served with a copy of this decision, any party may serve and file specific written objections to any or all findings or recommendations for determination, de novo, by the District Court. Failure to make a timely objection consistent with the statute and rule may, and normally will, result in waiver of further appeal to or ...