United States District Court, W.D. Kentucky, Louisville Division
N. Stivers, Judge.
Yale Larry Balcar, has filed a petition under 28 U.S.C.
§ 2241 for a writ of habeas corpus. The Court must
undertake a preliminary review of the petition to determine
whether “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court[.]” Rule 4, Rules
Governing § 2254 Cases. If so, the petition must be
summarily dismissed. Id.; see Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970) (holding that
a district court has the duty to “screen out”
petitions that lack merit on their face). After undertaking
the review required by Rule 4, the Court concludes that
Petitioner should have brought this habeas corpus action
under 28 U.S.C. § 2254 rather than § 2241 and will
dismiss the § 2241 petition without prejudice.
is incarcerated at the Kentucky State Reformatory. He states
that his petition is challenging “conviction and double
jeopardy” in his state court case 13-CR-0998. He states
that he did not appeal the state trial court judgment because
his attorney told him there was no appeal “or remedies
on this case at all.” As relief he asks for a
“full investigation . . . for a full report on these
bad check to get charges drop” and to overturn his
conviction and be released from prison. He also asks for $1,
000, 000 from Jefferson County for compensatory damages and
$1, 000, 000 in punitive damages for being falsely
Petitioner brings his habeas petition pursuant to §
2241, because he is “in custody pursuant to the
judgment of a State court, ” 28 U.S.C. § 2254, his
claims related to state-court case No. 13-CR-0998 are more
properly characterized under § 2254. See Rittenberry
v. Morgan, 468 F.3d 331, 337 (6th Cir. 2006).
should have filed his action under § 2254, and the Court
will not recharacterize the petition under § 2254.
See Martin v. Overton, 391 F.3d 710, 713 (6th Cir.
2004); Warren v. Miller, No. 1:05-cv651, 2005 WL
3007107, at *3 (W.D. Mich. Nov. 9, 2005) (dismissing §
2241 petition without prejudice instead of converting to
petition under § 2254). The Court will dismiss this
action without prejudice to avoid any adverse consequences
with respect to any § 2254 claim Petitioner may file in
the future. Id.
also asks for monetary and punitive damages for being falsely
imprisoned. Such requests for relief need to be brought as a
42 U.S.C. § 1983 action. The Clerk of Court is
DIRECTED to send to Petitioner this
Court's § 1983 packet.
individual who unsuccessfully petitions for a 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).
district court denies such a motion 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.
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