United States District Court, W.D. Kentucky, Bowling Green Division
ROY ANDERSON CARVER, JR. PETITIONER
THE COMMONWEALTH DEPARTMENT OF CORRECTIONS RESPONDENT
Petitioner, pro se Attorney General, Commonwealth of
Kentucky, Office of Criminal Appeals,
N. Stivers, United States District Court Judge
Roy Anderson Carver, Jr., pro se, brought this 28
U.S.C. § 2254 action by filing a petition for writ of
habeas corpus challenging his conviction for wanton
endangerment in the Warren Circuit Court (DN 1). On
preliminary consideration under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, the
Court directed Petitioner to show cause why his petition
should not be dismissed for failure to exhaust all available
state court remedies.
to the petition, Petitioner did not appeal from the judgment
of conviction or file any other petitions, applications, or
motions concerning the judgment of conviction in any state
court. In the portion of the petition form asking Petitioner
to explain why he had not appealed to the highest state court
having jurisdiction, he states: “illegal coerced guilty
plea in furtherance of Commonwealth's conspiracy for
civil rights violations and obstruction of justice.” In
his response (DN 8) to the Court's show-cause order,
Petitioner asserts that “an avenue of state
remedies” is “inapplicable and unavailable to the
petitioner as a matter of Kentucky state law, and
Non-Compliant to the U.S. Constitution and illumed by the
extraordinary events of abuse of discretionary authority,
harmful and irreversible miscarriage of justice unfairly
obtain thru the trial courts' coerced loquacious
‘GUILTY PLEA COLLOQUY' schemes . . . .” He
appears to assert that Kentucky is biased against pro
se litigants, in part because of its “notorious
White Nationalist Confederate Campaign body politic
collective.” His response also details his belief that
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) is one of the “worst statutes ever” and
makes arguments about the substance of his habeas
to the AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,
1996), a petitioner must exhaust his remedies in state court
before a federal court may grant habeas relief. 28 U.S.C.
§ 2254(b). As the Court explained in its show-cause
order, 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 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).
states that he has not presented his claims to the state
court for review. The only reason given by Petitioner is his
view that such remedies are inapplicable and unavailable to
him as a matter of Kentucky state law because of the trial
courts' allegedly coercive guilty-plea colloquy schemes.
Simply alleging a court conspiracy does not meet the test for
futility. See, e.g., Bru'ton v.
Johnson, No. 3:15-CV-00884, 2016 WL 912283, at *6 (M.D.
Tenn. Mar. 9, 2016) (“The petitioner's unsupported
claim of a court conspiracy against him is insufficient to
excuse the exhaustion requirement.”) (citing Banks
v. Smith, 377 F.Supp.2d 92, 95 (D.D.C. 2005)). Because
Petitioner has not exhausted his state remedies and because
he has not demonstrated the futility of the state appellate
procedure, the Court will dismiss the petition for failure to
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 such a motion 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