United States District Court, W.D. Kentucky, Owensboro
H. McKinley Jr., Senior Judge
Douglas Robertson, pro se, filed the instant 28
U.S.C. § 2254 petition for writ of habeas corpus
challenging his conviction in the Ohio County Circuit Court
(DN 1). The Court reviewed the petition under Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. Upon review, the Court directed Robertson to
show cause why his petition should not be dismissed for
failure to exhaust all available state court remedies.
Robertson did not file a response to the Show Cause Order.
Upon review, for the reasons set forth below, the Court will
deny the petition and dismiss the action for failure to
exhaust state court remedies.
does not state in the petition what crime he was convicted of
but states that he pleaded guilty and was sentenced on May
11, 2018, to 28 years' incarceration. In a prior
petition signed by Robertson's mother, she
stated that Robertson was convicted of sexual abuse in the
first degree, unlawful transaction with a minor, and bail
jumping. In the instant petition, in response to questions
concerning whether Robertson appealed his conviction,
Robertson indicates that he appealed to the Kentucky Supreme
Court and where the form asks for the result of the appeal,
Robertson states, “Can't help.” He also
indicates that he filed an appeal in “The Main Suprem
Court” and also states “Can't help” as
the result of the appeal. He does not provide the case number
of any appeal or the dates that he filed an appeal or
received a result. Based upon these vague answers, the Court
concludes that Robertson did not file an appeal from the
judgment of conviction or file any other petitions,
applications, or motions concerning the judgment of
conviction in any state court.
axiomatic that one may not seek federal habeas corpus relief
until he has exhausted all available state remedies or
demonstrated their inadequacies. 28 U.S.C. § 2254(b);
Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995)
(per curiam). 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 the 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.
petition suggests that Robertson did not file a direct appeal
of his conviction or any other challenge to allow for state
court review. Before dismissing the action, however, the
Court provided Robertson with an opportunity to show cause
why his petition should not be dismissed for failure to
exhaust all available state court remedies. Robertson failed
to respond to the Court's Show Cause Order or to
otherwise meet his burden in establishing that he complied
with the exhaustion requirement or that the state procedure
would be futile.
these reasons, the Court concludes that the petition for writ
of habeas corpus must be dismissed for failure to exhaust
available state court remedies.
event that Robertson appeals this Court's decision, he is
required to obtain a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A); Fed. R. App. P. 22(b). A district court
must issue or deny a certificate of appealability and can do
so even though the petitioner has yet to make a request for
such a certificate. Castro v. United States, 310
F.3d 900, 903 (6th Cir. 2002). When a district court denies a
petition on procedural grounds without addressing the merits
of the petition, a certificate of appealability 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 v.
McDaniel, 529 U.S. 473, 484 (2000). When a plain
procedural bar is present and the district 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 motion or that the petitioner should be allowed to
proceed further. Id. In such a case, no appeal is
warranted. Id. This Court is satisfied that no
jurists of reason could find its procedural ruling to be
debatable. Thus, no certificate of appealability is warranted
in this case.
Court will enter a separate Order consistent with this
 The petition filed by Robertson's
mother was opened as a separate civil action, No.
4:19CV-59-JHM. That case was dismissed as improperly filed