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Phar v. 14Th Circuit Court of Kentucky

United States District Court, E.D. Kentucky, Central Division, Lexington

April 26, 2017

ROSS “WORD” PHAR, Plaintiff,
v.
14TH CIRCUIT COURT OF KENTUCKY and THE HONORABLE JUDGE PAUL ISAACS, Defendants.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge.

         I. INTRODUCTION

         Petitioner Ross “Word” Phar, proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [DE 1] against the 14th Circuit Court of Kentucky and The Honorable Judge Paul Isaacs.[1] Phar, a defendant in one of Judge Isaacs's criminal cases, seeks relief from his five-year term of pretrial diversion, which requires him to comply with a host of conditions imposed by the Court and enforced by the Office of Probation and Parole.[2] See Commonwealth v. Phar, 12-CR-134. Specifically, Phar argues that the length of his term is “grossly excessive and without purpose.”[3] [Id. at 1]. For the reasons stated herein, Phar's Petition [DE 1] must be DISMISSED WITHOUT PREJUDICE.

         II. ANALYSIS

         The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). A petition will be denied “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Phar's Petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At this stage of the proceedings, the Court accepts Phar's factual allegations as true and construes all legal claims in his favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”[4] 28 U.S.C. § 2241(a). However, before seeking relief under § 2241, the petitioner must exhaust his state court remedies. Urbina v. Thoms, 270 F.3d 292, 295 n. 1 (6th Cir. 2001). “[T]he doctrine of exhaustion of state remedies has developed to protect the state courts' opportunity to confront initially and resolve constitutional issues arising within their jurisdictions and to limit federal judicial interference in state adjudicatory processes.” Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981). “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).

         In his Petition, Phar seems to admit that he has not previously sought relief in the Woodford Circuit Court. He states:

I will be presenting these grounds in court today (4/5/2017). In the instance that I am not granted relief, however I would like for this appeal to be heard by the higher court. This writ is my backup plan.

[Id. at 7]. The Court has reviewed the Woodford Circuit Court docket from April 5, 2017, but sees no indication that Phar orally requested relief from his term of pretrial diversion during the hearing. There is also nothing in the court record or in Phar's filings to suggest that he is pursuing other available state remedies, such as filing a petition for writ of habeas corpus in the Woodford Circuit Court. See Ky. Const. § 16; Ky. Rev. Stat. Ann. § 419.020. Because Phar has failed to demonstrate that he exhausted his state court remedies, his Petition must be dismissed.[5]

         III. CONCLUSION

         Accordingly, for the reasons stated herein, IT IS ORDERED that Petitioner Ross Phar's Petition [DE 1] be, and is, hereby DISMISSED WITHOUT PREJUDICE.

         IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Memorandum Opinion and Order to Phar at his listed address.

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