United States District Court, E.D. Kentucky Southern Division, London
JOHN C. COMBS, Petitioner,
KEITH HELTON, WARDEN, Respondent.
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge.
January 25, 2019, Petitioner John C. Combs
(“Combs” or “Petitioner'), an inmate
currently incarcerated in the Little Sandy Correctional
Complex, Sandy Hook, Kentucky, filed a pro se
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. (See R. 1). Consistent with local
practice, this matter has been referred to the undersigned
for consideration and preparation of a report and
recommendation pursuant to 28 U.S.C. § 636(b). Having
reviewed Petitioner's filing, and finding
Petitioner's presentation to be non-cognizable and
untimely, it will be recommended that Combs's § 2254
Petition be dismissed.
PRELIMINARY REVIEW STANDARD
of the Rules Governing Section 2254 Cases in the United
States District Courts provides for a federal district court
to conduct a preliminary review prior to serving a respondent
with a copy of a petition and requiring a response. Rule 4
specifically instructs trial courts that “[i]f it
plainly appears from the petition and any 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.” Because preliminary
review reveals that Combs's Petition presents a claim
which is not a cognizable basis for relief under 28 U.S.C.
§ 2254, and because any other claims arguably presented
in the Petition would be untimely, Rule 4 mandates that the
Petition be dismissed without requiring Respondent to
January 25, 2010, a Perry County Grand Jury indicted Combs on
counts of murder under KRS § 507.020, first-degree
burglary under KRS § 511.020, tampering with physical
evidence under KRS § 524.100, and terroristic
threatening in the third-degree under KRS §
508.080. Combs ultimately entered a plea of guilty
to one count of murder under KRS § 507.020, and on
October 18, 2013, he was sentenced to 40 years of
imprisonment. (See R. 1, at 1; R. 1-2, at 2). There
is no indication that Combs filed an appeal of his
states he filed a motion for collateral relief pursuant to
Kentucky Rule of Criminal Procedure (“RCr”) 11.42
on January 4, 2016 (See R. 1-2, at 9, 11),
which was denied by the Perry County Circuit Court on April
11, 2016 (see id. at 2). Petitioner filed an appeal
on August 25, 2016, which appeal was dismissed by the
Kentucky Court of Appeals on June 21, 2017, as untimely.
(Id. at 16-17). There is no indication that Combs
filed a petition for review with the Kentucky Supreme Court.
The Kentucky Court of Appeals docket sheet for case number
2017-CA-001455, which was provided by Combs, shows that
Petitioner also filed a motion for belated appeal with the
Kentucky Court of Appeals on September 14, 2017, which was
denied on December 15, 2017.
January 25, 2019, Combs filed a pro se Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2254 with this
Court. (R. 1). In his Petition, Combs asserts that he filed a
motion for collateral relief pursuant to RCr 11.42 on January
4, 2016, in the Perry County Circuit Court. (See R.
1-2, at 9, 11). The Perry Circuit Court docket reflects that
a status hearing on the motion occurred on March 31, 2016,
and the motion was subsequently denied by the trial court in
an April 11, 2016 order. Combs asserts that “the
hearing he was brought to was [a] [d]enial of his RCr 11.42
Motion, ” and that he did not receive the state
court's order denying his RCr 11.42 motion until after
his time to appeal had expired. (See R. 1, at 5; R. 1-1,
at 2). As a result, Combs alleges that he was
“stripped” of “his ability to appeal [the
court's denial] in a timely matter” and “his
ability to adequately present his post-conviction
claims” because he did not receive the Court's
denial in a timely matter. (R. 1, at 5). He now seeks an
Order from this Court to reinstate his RCr 11.42 motion
“for [a] normal proceeding” and to
“dismiss the time bar” upon which the Court of
Appeals based its dismissal of Combs's appeal of his RCr
Petitioner's challenge to the state court's dismissal
as untimely of his appeal of the denial of his RCr 11.42
motion is non-cognizable.
asserts one ground as a basis for habeas relief. He alleges
that because he did not timely receive the state court's
denial of his motion for collateral relief pursuant to RCr
11.42, he was stripped of his ability to timely appeal that
decision to the Kentucky Court of Appeals. In essence,
Combs's Petition seeks to challenge the dismissal of his
RCr 11.42 appeal by the Kentucky Court of Appeals as untimely
and asks this Court to reinstate his RCr 11.42 motion for a
“normal proceeding.” (See id., at 5-6,
15; R. 1-2 at 16-17). But the problem for Combs is that any
alleged error in his state collateral proceeding is not
cognizable in a petition brought under 28 U.S.C. § 2254.
courts review state prisoners' petitions for relief under
§ 2254 only for violations of “the Constitution or
laws or treaties of the United States.” See 28
U.S.C. § 2254(a). Thus, “errors in application of
state law . . . are usually not cognizable in federal habeas
corpus.” Bey v. Bagley, 500 F.3d 514, 519 (6th
Cir. 2007) (citing Walker v. Engle, 703 F.2d 959,
962 (6th Cir. 1983)); see also Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) (“It is not the province of a
federal habeas court to reexamine state court determinations
on state law questions.”).
in the Sixth Circuit have consistently held that
“errors in state post-conviction proceedings do not
provide a basis for federal habeas corpus relief” and
thus are “not subject to review under the federal
habeas corpus statute[.]” Haynie v. Buchanan,
No. 2:18-cv-1781, 2019 WL 295503, at *3 (S.D. Ohio Jan. 23,
2019) (recommending dismissal of petition on preliminary
review, noting that petitioner's assertion that the state
court “improperly refused to provide him an evidentiary
hearing prior to the dismissal of his petition for
post-conviction relief” was not a cognizable claim for
federal habeas corpus relief), report and recommendation
adopted by 2:18-cv-1781, 2019 WL 926031 (S.D. Ohio Feb.
26, 2019); also see Small v. Harry, No.
2:17-cv-12803, 2017 WL 4883635, at *2 (E.D. Mich. Oct. 30,
2017) (“Petitioner's claim that the Michigan courts
wrongfully denied him post-conviction relief is
non-cognizable.”); Hager v. Parker, No.
7:08-cv-183-KKC, 2010 WL 897260, at *6 (E.D. Ky. Mar. 9,
2010) (“[E]rrors in post conviction proceedings are
outside the scope of federal habeas corpus review . . .
Errors allegedly committed during Rule 11.42 proceedings
clearly fall within this prohibition . . . .”) (citing
Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007);
Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir.
1986)). “The reason for this is that the states have no
constitutional obligation to provide post-conviction
remedies.” Small, 2017 WL 4883635, at *2;
also see Blevins v. White, No. 10-cv-07-GFVT-CJS,
2014 WL 7004976, at *20 (E.D. Ky. Dec. 10, 2014) (“. .
. the writ of habeas corpus is not an appropriate tool for
challenging errors or deficiencies in state-post-conviction
proceedings. Rather, the writ is reserved for constitutional
errors underlying the conviction itself.”) (quoting
Sherley v. Parker, No. 99-5535, 2000 WL 1141425, at
*6 (6th Cir. Aug. 8, 2000)).
Sixth Circuit has emphasized that “the essence of
habeas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function
of the writ is to secure release from illegal custody.”
Kirby, 794 F.2d at 246 (quoting Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973)). In other words, a
petition brought under § 2254 “must directly
dispute the fact or duration of confinement.”
Id. at 248. Accordingly, even if a claim challenging
a state post-conviction proceeding were “resolved in a
petitioner's favor, [it] would not ‘result [in] . .
. release or a reduction in . . . time to be served or in any
other way affect his detention because [the Court] would not
be reviewing any matter directly pertaining to his
detention.” Small, 2017 WL 4883635, at *2
(quoting Cress, 484 F.3d at 853). Therefore, claims
“which address collateral matters and not the