United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tateiihove United States District Judge.
matter is before the Court upon Petitioner Eugene Emanuel
Bates's pro se Petition for a Writ of Habeas Corpus [R.
5] pursuant to 28 U.S.C. § 2254. Consistent with local
practice, this matter was referred to Magistrate Judge Robert
E. Wier for initial screening and preparation of a report and
recommendation. Judge Wier filed his Report and
Recommendation on January 12, 2015, in which he recommends
that Bates's petition be denied. [R. 13 at 14].
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
R&R or else waive his rights to appeal. This Court will
liberally construe the present filing of objections to the
R&R as timely, although Bates has failed to stay strictly
within the procedural filing deadlines. [R. 14]. However,
the Court cautions that future failure to stay within filing
deadlines, absent a motion seeking an extension of time for
filing objections pursuant to Local Rule 7.1(b), will result
in waiver of further appeal to or review by the District
Court and Court of Appeals. Thomas v. Arn, 474 U.S.
specifically objects to two of Judge Wier's findings. [R.
14.] First, he objects to Judge Weir's determination that
Bates' claimed error on jury instructions does not
implicate a constitutional right, and thus, presents no
federal habeas issue. Second, he objects to Judge Wier's
conclusion that Kentucky courts, first the trial court and
subsequently the Supreme Court of Kentucky, reasonably
resolved his Batson challenge. These objections trigger this
Court's obligation to conduct a de novo review.
See 28 U.S.C. § 636(b)(1)(c). The Court has
satisfied that duty, reviewing the entire record, including
the pleadings, the parties' arguments, relevant case law
and statutory authority, as well as applicable procedural
rules. For the following reasons, Bates's objections will
December 17, 2011, Bates entered the apartment of two men,
Donald Lutz and Chase Bablitz, while no one was home. [R. 13
at 2.] After entering the apartment, Bates collected a number
of items belonging to the apartment occupants, including two
laptop computers, a gun, and a hat filled with coins.
[Id.] As Bates was leaving with these items in hand,
Lutz and Bablitz returned to the residence, saw Bates, and
proceeded to chase and capture him as he attempted to flee.
[Id.] After apprehending Bates, Lutz and Bablitz
restrained him until authorities arrived, at which point
Bates resisted arrest. [Id.]
post-arrest interview, Bates claimed to have known Lutz and
Bablitz from previous drug buys, further claiming that he
entered the apartment due to dissatisfaction with marijuana
he had purchased from them. [Id.] At trial, however,
both Bates and Lutz denied ever having met Bates prior to the
night of the incident at their apartment. [Id. at
3.] Ultimately, the jury convicted Bates of
“second-degree burglary, resisting arrest, and of
being a first-degree persistent felony offender, recommending
a total sentence of twenty years of imprisonment.”
[Id.] The trial court entered judgment consistent
with the jury's verdict and recommendation.
[Id.] Bates appealed to the Supreme Court of
Kentucky, asserting (1) that he was entitled to a jury
instruction on the lesser included offense of criminal
trespass; and (2) that the trial court committed a
Batson violation by denying his objection to the
Commonwealth's peremptory strike of an African-American
potential juror. [Id.] The Supreme Court of Kentucky
rejected each challenge and affirmed the conviction.
[Id.] The United States Supreme Court then denied
Bates's petition for a writ of certiorari. [Id.]
Wier's Recommended Disposition accurately sets forth a
more detailed account of the factual and procedural
background of the case and the applicable standard of review
for granting habeas relief pursuant to § 2254(d). Except
for what the Court supplements in its discussion below, the
Court incorporates his discussion of the record and the
standard of review into this Order.
first of Bates's objections concerns his first claim made
in an effort to secure habeas relief, that he was entitled to
a jury instruction on the lesser included offense of criminal
trespass. Specifically, Bates objects to the determination by
the Magistrate that Bates' claimed error on jury
instructions does not implicate a constitutional right, and
thus, presents no federal habeas issue. [R. 14 at 3.] Bates
alleges that the “Court made the determination under a
more stringent standard than for a pro se litigant in the
true that pro se pleadings are held to “less stringent
standards” and are “entitled to liberal
construction, ” which “requires active
interpretation in some cases to construe a pro se petition to
encompass any allegation stating federal relief.”
Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985)
(internal quotations omitted). However, in spite of the
“liberal pleading” standard accorded to pro se
litigants, it remains that habeas relief is available
“only on the ground that [a prisoner] is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Thus, the
Magistrate accurately stated that “[t]he state
decision, to be vulnerable, must have transgressed federal
constitutional strictures defined by the United States
Supreme Court.” [R. 13 at 9-10.]
case law makes clear that the a trial error in state court
does not implicate federal constitutional rights held by the
petitioner. The Magistrate cites recent applicable Sixth
Circuit precedent which holds that, “[t]he Supreme
Court, however, has never held that the Due Process Clause
requires instructing the jury on a lesser included offense in
a non-capital case.” McMullan v. Booker, 761
F.3d 662, 666-67 (6th Cir. 2014) (citing Beck v.
Alabama, 447 U.S. 625, 638 n. 14 (1980)). Thus, it
follows that “in this non-capital case . . .
Bates's complaint about instructions does not implicate a
constitutional right.” [R. 13 at 10.] Moreover,
“a state court's interpretation of state law,
including one announced on direct appeal of the challenged
conviction binds a federal court sitting in habeas
review.” Bradshaw v. Richey, 546 U.S. 74, 76
further concerns the specific objection by Bates that too
“stringent” a standard was applied by the
Magistrate, the Sixth Circuit has stated: “[w]hile
courts are properly charged with protecting the rights of all
who come before it, that responsibility does not encompass
advising litigants as to what legal theories they should
pursue.” Young Bok Song v. Gipson, 423 Fed.
App'x 506 (6th. Cir. 2011). Bates fails to cite any
precedent, in either his Petition for a Writ of Habeas Corpus
[R. 5], or his objections to the findings in the R&R [R.
14], supporting the instruction-based claim. The Magistrate
applied the proper standard and proper ...