United States District Court, W.D. Kentucky, Paducah Division
CLARENCE L. RUSSELL PETITIONER
WARDEN AARON SMITH RESPONDENT
N. Stivers, Judge.
Clarence L. Russell filed a pro se petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 with an
attached statement of claims (DN 1). The petition is before
this Court for preliminary consideration under Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons set forth below, the Court
will dismiss this action for failure to exhaust all available
state court remedies.
petition indicates that Russell is challenging his conviction
in the Fulton County Circuit Court in which he was sentenced
on January 27, 2010, in Case No. 09-CR-00045 to fifteen years
in prison for sexual abuse in the first degree, criminal
attempt, unlawful transaction with a minor, and terroristic
threatening. On his § 2254 petition form, Russell
indicates that in January 2017 he filed in that Fulton
Circuit Court criminal case a petition, application, or
motion raising claims related to due process. Elsewhere on
the form, he indicates that he has filed “a 11.42 an
60.02 in Fulton County Circuit Court, Ky. Wait answer from
axiomatic that one may not seek federal habeas corpus relief
until he has exhausted all available state remedies or
demonstrated their inadequacies. 28 U.S.C. §
2254(b); Hannah v. Conley, 49 F.3d 1193,
1196 (6th Cir. 1995) (per curiam). Any alleged constitutional
deprivations must be asserted through the state appellate
process. O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). “Because the exhaustion doctrine is
designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims
are presented to the federal courts, [the Supreme Court]
conclude[s] that state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process.” Id. 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.
Russell's § 2254 petition clearly indicates that he
has post-conviction motions challenging his convictions
pending in state court. Although a federal court may stay a
federal habeas petition and hold further proceedings in
abeyance pending resolution of state court post-conviction
proceedings in limited circumstances, Rhines v.
Weber, 544 U.S. 269, 277-78 (2005), when a federal
habeas corpus petition contains solely unexhausted grounds
for relief, as is the case here, the court should dismiss the
federal habeas corpus petition without prejudice. See
Dewey v. Horton, No. 2:17-cv-1-0694, 2017 WL 1151158, at
*3 (E.D. Mich. Mar. 28, 2017) (citing Raspberry v.
Garcia, 448 F.3d 1150 (9th Cir. 2006)); United
States v. Hickman, 191 F. App'x 756, 757 (10th Cir.
2006) (“Traditionally, when a petition contains
entirely unexhausted state claims, the petition would be
dismissed without prejudice . . . stay and abeyance of
totally unexhausted petitions increases the temptation to
decide unexhausted claims and decreases the incentive to
exhaust first.”); McDonald v. Bell, No.
1:06-cv-406, 2009 WL 1525970 (W.D. Mich. June 1, 2009)
(dismissing petition after concluding that the stay and
abeyance procedure does not apply to a habeas petition
containing only unexhausted claims); Mimms v.
Russell, No. 1:08-cv-79, 2009 WL 890509 (S.D. Ohio Mar.
31, 2009) (finding habeas petition subject to dismissal where
petitioner did not exhaust any of his state court remedies on
any of the claims presented in the petition); Wilson v.
Warren, No. 06-cv-15508, 2007 WL 37756, at *2 (E.D.
Mich. Jan. 4, 2007) (“[I]n this case, a stay of
petitioner's application for a writ of habeas corpus
would be inappropriate, because all of petitioner's
claims are unexhausted and thus, the Court lacks jurisdiction
over the petition while the petitioner pursues his claims in
Court further notes that many of the allegations Russell
makes in the instant action concern claims for damages or
relate to conditions of confinement which this Court does not
consider in this habeas proceeding. These claims must be
raised in a complaint filed under 42 U.S.C. § 1983.
Therefore, the Court will dismiss the instant petition
without prejudice by separate Order. Martin v.
Overton, 391 F.3d 710, 714 (6th Cir. 2004) (stating that
habeas petitions alleging a denial of a federal right by a
state actor “have been dismissed without prejudice to a
petitioner's potential § 1983 claims, allowing the
prisoner to later bring any civil rights claims
Clerk of Court is DIRECTED to send a 42
U.S.C. § 1983 form to Russell should he wish to raise
these civil-rights claims in a separate § 1983 action.
individual who unsuccessfully petitions for 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 a petition 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