United States District Court, E.D. Kentucky, Eastern Division, Pikeville
BENNY E. MCKENZIE, Petitioner,
POWELL COUNTY DETENTION CENTER, Respondent.
E. Wier United States Magistrate Judge
February 9, 2018,  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).
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.
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.
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.
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).
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
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 ...