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Tigue v. Smith

United States District Court, E.D. Kentucky, Southern Division, London

July 12, 2018

SHAWN TIGUE, Petitioner,
v.
AARON SMITH, Warden, Respondent.

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood Senior U.S. District Judge.

         When a state prisoner seeks federal habeas relief he must first exhaust remedies available in state court or demonstrate their inadequacy. 28 U.S.C. § 225');">5');">5');">54(b)(1). This flows from longstanding comity and federalism principles ingrained into the federal habeas scheme. Indeed, navigating state courts before coming to federal court is part and parcel of the post-conviction process.

         Shawn Tigue, the petitioner in this case, was first found guilty of murder in state court before the Kentucky Supreme Court overturned his conviction and vacated his sentence. He then attempted to stop a second prosecution but failed. And after being convicted a second time, he filed a habeas petition with this Court while his direct appeal was pending in state court. Former Magistrate Judge Robert Wier recommended that this Court deny Tigue's petition as premature. Tigue then filed lengthy written objections and supplemental objections to Judge Wier's recommended disposition. [DE 7');">7, 9].

         No doubt, Tigue has vigorously litigated his case. But in coming to this Court now-while his case is on appeal in state court-he has run afoul of the habeas exhaustion requirement. Thus, after a de novo review, this Court finds that Tigue's petition fails for the reasons articulated in Judge Wier's Report and Recommendation. Accordingly, this court will ACCEPT and ADOPT the magistrate judge's recommended disposition as its own.

         I. Background

         Petitioner Tigue filed a pro se petition for a writ of habeas corpus on August 18, 2017');">7. [DE 1]. Although Tigue filed his petition pursuant to § 2241, Judge Reeves construed the petition as arising under § 225');">5');">5');">54. [DE 3]. Consistent with local practice, this matter then went to Judge Wier for initial review and a recommended disposition [DE 4].

         Judge Wier reviewed the petition and on August 23, 2017');">7 recommended that this Court summarily dismiss the petition and deny a certificate of appealability. [DE 5');">5');">5');">5]. Specifically, Judge Wier found that Tigue's petition required dismissal under Rule 4 of the Rules Governing Section 225');">5');">5');">54 Proceedings because “[s]imply put, the federal habeas exhaustion requirement bars Tigue's claims.” [DE 5');">5');">5');">5, p. 3]. Tigue admits his case is currently pending a direct appeal to the Kentucky Supreme Court. [DE 1, p. 2]. Thus, Judge Wier concluded, Tigue has not exhausted all available state remedies. [DE 5');">5');">5');">5, p. 3]. Judge Wier further concluded that exhaustion would bar Tigue's petition even if the Court had found it fell under § 2241 rather than § 225');">5');">5');">54. [Id., pp. 4-5');">5');">5');">5]. The magistrate judge also (1) found no need for a hearing on Tigue's petition, and (2) recommended this Court deny a certificate of appealability. [Id., p 6-8].

         Tigue then filed Objections to Judge Wier's Report and Recommendation [DE 7');">7], a Motion for Extension of Time to File Objections [DE 8], and Supplemental Objections to the Report and Recommendation. [DE 9]. In determining whether Tigue's filings were timely, this Court applies the prisoner mailbox rule under Rule 3(d) of the Rules Governing Section 225');">5');">5');">54 Cases in the United States District Courts. This rule considers a filing timely if “deposited in the institution's internal mailing system on or before the last day for filing.” Rule 3(d). The Court deems this date to be the date on which the prisoner signed the documents and presumably placed them into the mailing system. See United States v. Hutsell, No. 5');">5');">5');">5:10-CR-7');">78, 2015');">5');">5');">5 WL 9147');">736, at *1, n.1 (E.D. Ky. Mar. 3, 2015');">5');">5');">5). And because Tigue was served by mail, three additional days for service are provided by Fed.R.Civ.P. 6(d). Tigue's Motion for an Extension of Time was signed September 8, and postage marked September 11. Under either date, it was timely filed. This Court GRANTS the Motion for Extension of Time [DE 8] and finds that Tigue's objections were timely filed. We now consider Tigue's objections, in turn.

         II. Standard of Review

         Under Federal Rule of Civil Procedure 7');">72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. P. 7');">72(b)(2). “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(c). Any objections must be stated with specificity. Thomas v. Arn, 47');">74 U.S. 140, 15');">5');">5');">51 (1985');">5');">5');">5). “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” VanDiver v. martin, 304 F.Supp.2d 934, 937');">7-38 (E.D. Mich. 2004).

         III. Analysis

         Tigue makes many objections that center on alleged violations of his rights under the Fifth, Sixth, and Fourteenth Amendments. [DE 7');">7, p. 8]. In total, Tigue lists eleven objections. [DE 7');">7]. He also filed supplemental objections that largely overlap with his original objections. [DE 9].

         “[T]he doctrine of exhaustion of state remedies has developed to protect the state courts' opportunity to confront initially and resolve constitutional issues arising within their jurisdictions and to limit federal judicial interference in state adjudicatory processes.” Atkins v. Michigan, 5');">5');">5');">543');">644 F.2d 5');">5');">5');">543, 5');">5');">5');">546 (6th Cir. 1981). “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');">7 F.3d 15');">5');">5');">55');">5');">5');">5, 160 (6th Cir. 1994).

         Although Tigue makes numerous “objections, ” none addresses the main issue before this Court: namely, that Tigue has failed to exhaust his state remedies. Indeed, Tigue writes, “Tigue does, in fact, admit that a direct appeal is pending.” [DE 7');">7, p. 26]. Tigue also admitted as much in his original petition. [DE 1, p. 2]. That action remains pending. And where a prisoner fails to exhaust his state court remedies, he ...


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