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McKenzie v. Powell County Detention Center

United States District Court, E.D. Kentucky, Eastern Division, Pikeville

April 12, 2018

BENNY E. MCKENZIE, Petitioner,
v.
POWELL COUNTY DETENTION CENTER, Respondent.

          RECOMMENDED DISPOSITION

          Robert E. Wier United States Magistrate Judge

         On February 9, 2018, [1] Petitioner, Benny McKenzie, filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. DE 1 (Petition). The Court conducted an initial review of the Petition and perceived the Petition to be in an incomplete form and to present an unexhausted claim. However, in order to give McKenzie a fair opportunity to respond, the Court ordered briefing on the exhaustion issue and directed Petitioner to submit an amended petition, replacing the current respondent with the state official custodian. DE 7 (Order). Petitioner did not respond. The Commonwealth contends that Petitioner's claim is unexhausted and requests dismissal. DE 11 (Response).

         McKenzie's sole claim alleges ineffective assistance of counsel:

My Lawyer had me take A plea bargin [sic] for escape. I was on Ankle monitor [sic] when I removed the ankle monitor and left. I should of [sic] just been guilty of bail Jumping.

DE 1, at 5. Petitioner evidently planned to seek vacatur of his guilty plea, but ultimately declined to request any particular relief. DE 1, at 15.

         Having reviewed the filings under the applicable standards, the Court recommends that the District Court dismiss the Petition without prejudice and deny a Certificate of Appealability.

         Rule 4 Dismissal

         The Court conducts a preliminary review of § 2254 petitions:

[T]he [assigned] judge must promptly examine [the petition]. If it plainly appears from the petition and [the] attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         Rule 4.

         Dismissal under Rule 4 is appropriate for “petitions that raise legally frivolous claims, ” as well as “petitions containing factual allegations that are palpably incredible or false.” Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). A court should “summarily dismiss [a] petition without even requiring a response from the government if the petition and exhibits plainly show that the petitioner is not entitled to relief[.]” Id. at 437 (citing and relying on Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993)). “Rule 4 .. . authorizes a district court to conduct an initial screening of petitions and to dismiss unworthy requests for habeas corpus relief.” Small, 998 F.2d at 414. A “court can dismiss a petition that raises a legal theory that is indisputably without merit.” Id. Indeed, this “Court has a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face, ” including “when the petition is frivolous, or obviously lacking in merit.” Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).

         McKenzie, per the Petition, pleaded guilty to second degree escape, and the Johnson Circuit Court sentenced him to 1 year of imprisonment on June 2, 2017. The Petition denies any appeal or state collateral attack (and the Court sees none). McKenzie now alleges ineffective assistance of counsel. The unexhausted claim is, at least at this time, legally frivolous.

         Failure to Exhaust

         “A federal court may not grant habeas corpus relief unless the petitioner has exhausted all available state remedies or demonstrated their inadequacies.” Lubenko v. Jefferson County Circuit Court, 2007 WL 1031611, at *1 (W.D. Ky. March 27, 2007) (citing 28 U.S.C. § 2254(b) (requiring the applicant to “exhaust[ ] the remedies available in the court of the State”); Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002)). Exhaustion requires a petitioner to “fairly present” each claim to the state courts or, put differently, the state courts must have the opportunity to see “both the factual and legal basis for each claim.” Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009) (citation omitted). The petitioner bears the burden of ...


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