United States District Court, E.D. Kentucky
REPORT AND RECOMMENDATION
CANDACE J. SMITH, Magistrate Judge.
On July 29, 2014, Petitioner David Wayne Bailey filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (R. 1). After conducting its preliminary review under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, on August 20, 2014, the Court ordered Petitioner to show cause why his Petition should not be dismissed as untimely and/or as procedurally defaulted. (R. 6). On August 28, 2014, Petitioner responded to the Show Cause Order. (R. 7).
On October 16, 2014, Petitioner filed a Motion seeking leave to file an amended petition to assert additional claims involving the revocation of his sex offender post-incarceration supervision. (R. 11). On October 17, 2014, the presiding District Judge granted Petitioner leave to file an Amended Petition to add additional claims. (R. 13). The Court has now conducted a preliminary review of the Amended Petition. As explained below, Petitioner's newly-asserted claims have not been exhausted in the state courts, and therefore it will be herein recommended that the Amended Petition be dismissed without prejudice as a mixed petition while Petitioner pursues his state court remedies on his unexhausted claims.
On February 6, 2007, a Harrison County, Kentucky, grand jury returned an indictment charging Petitioner with one count of sexual abuse in the first degree for a July 20, 2006, event involving a minor victim under the age of twelve. ( See underlying indictment). Petitioner proceeded to trial, and a jury convicted him. (R. 1). On May 9, 2008, he was sentenced to a five-year term of imprisonment. ( Id. at 1-2). The final judgment reflects Petitioner was also sentenced to a five-year term of conditional discharge,  and is required to register as a sex offender. Petitioner appealed, and on August 28, 2009, the Kentucky Court of Appeals affirmed the judgment of the trial court. See Bailey v. Commonwealth, No. 2008-CA-1108, 2009 WL 2633507, at *5 (Ky. Ct. App. Aug. 28, 2009). The Kentucky Supreme Court denied discretionary review on March 10, 2010. Id. Petitioner does not assert that he sought a writ of certiorari in the United States Supreme Court.
The case history reflects that on December 27, 2010, Petitioner sought post-conviction relief by filing a Motion to Vacate pursuant to Kentucky Rule of Criminal Procedure ("RCr") 11.42. On July 26, 2011, the trial court denied Petitioner's 11.42 Motion. See Bailey v. Commonwealth, No. 2011-CA-001498-MR, 2012 WL 353474, at *1 (Ky. Ct. App. Aug. 17, 2012). Petitioner appealed, and on August 17, 2012, the Kentucky Court of Appeals affirmed the trial court's decision. Id. There is no indication that Petitioner sought discretionary review from the Kentucky Supreme Court.
On November 26, 2012, Petitioner was released from imprisonment and placed on post-incarceration supervision. (R. 4, at ¶ 2). As part of his release, he was directed to complete the Kentucky Sex Offender Treatment Program. See Bailey v. Alley, No. 6:13-cv-00015-DLB, 2013 WL 5411092, at *1 (E.D. Ky. Sept. 26, 2013) (Petitioner's § 1983 action). In August 2013, the Parole Board ultimately found Petitioner to be noncompliant with the conditions of his release, and he was returned to prison. Id.
On January 18, 2013, Petitioner filed in this federal court a complaint, and amendments thereto, asserting claims under 42 U.S.C. § 1983, related to his termination from the sex offender treatment program and the revocation of his conditional release. Id. Petitioner also sought an injunction prohibiting the defendants from further enforcement of the Kentucky Sex Offender Registration Act and from imposing certain conditions following his release. Id. On September 26, 2013, the federal court dismissed his federal claims, explaining that to the extent Petitioner seeks a finding that the state court conviction and/or revocation of his conditional release were in violation of his constitutional rights, he must proceed by filing a petition under 28 U.S.C. § 2254. Id.
On or about October 8, 2013, Petitioner filed a motion under Rule 60.02 of the Kentucky Rules of Civil Procedure ("CR") raising two issues: 1) the final judgment improperly contains a provision sentencing him to five years of post-incarceration supervision instead of three; and 2) he should not be subjected to the residency restriction imposed on sex offenders. ( See R. 1-2, at 3-4 (order denying CR 60.02 Motion); state case history report). Petitioner argued that the basis for both claims was that Kentucky law did not include these conditions at the time he was charged with his offense, and they therefore should not be imposed on him. On October 10, 2013, the Harrison County Circuit Court denied Petitioner's CR 60.02 Motion, finding the conditions were properly imposed. (R. 1-2). Petitioner did not appeal.
Petitioner filed a further Rule 60.02 Motion, requesting the Court enter an order directing the Department of Corrections to continue him on post-incarceration supervision and permit him to reapply for the Sex Offender Treatment Program. (R. 1-2). On January 24, 2014, the Harrison County Circuit Court denied Petitioner's Motion, finding the revocation process for post-incarceration supervision to be an executive function, not a judicial function, and thus the court was precluded from granting the relief sought. ( Id. ). Petitioner does not appear to have appealed this decision.
On July 29, 2014, Petitioner filed the instant Petition, raising the same issues raised in his October 8, 2013, CR 60.02 Motion. On August 20, 2014, this Court ordered Petitioner to show cause why his Petition should not be dismissed as being time barred and/or procedurally defaulted. (R. 6). In response to the Show Cause Order, Petitioner did not argue that his Petition was timely or that he had, in fact, exhausted his state court remedies. (R. 7). Instead, Petitioner argued that he has asserted a claim of actual innocence, and he also attempted to raise a new claim that his post-incarceration supervision was improperly revoked. ( Id. ).
On October 16, 2014, Petitioner filed a Motion seeking leave to file an amended petition to assert additional claims that the revocation of his post-incarceration supervision was improperly revoked in violation of his constitutional rights. (R. 11). On October 17, 2014, the presiding District Judge granted Petitioner's Motion to amend and directed the Clerk of Court to file the proposed Amended Petition in the record. (R. 13). In his Amended Petition, Petitioner sets forth three additional claims: 1) he was terminated from the Sex Offender Treatment Program, and ultimately revoked from post-incarceration supervision, in violation of his right to free speech for voicing his religious beliefs on abortion; 2) he was denied due process when the Parole Board held a final revocation hearing without providing him with counsel and without providing him an opportunity to present mitigating circumstances for his violation; and 3) "Respect for the law is a matter of the highest public interest, " arguing the public interest will be best served by revoking the Parole Board's decision and reinstating his supervision. (R. 14).
A. Petitioner's Newly-Asserted Claims Regarding the Revocation of his Post-Incarceration ...