William Ray Jones, Petitioner-appellant, v. David L. Davis, Warden, Respondent-appellee, 336 F.2d 594 (6th Cir. 1964)

Petitioner, who is serving a life sentence in the Kentucky State Reformatory under conviction as an habitual criminal, appeals from the order of the District Court denying his application for writ of habeas corpus.

The sole question raised on this appeal arises from the failure of the clerk of the state court in which petitioner was convicted, following the return of the indictment by the grand jury, to give notice to the State Commissioner of Mental Health as required by K.R.S. § 203.340.¹ 

Petitioner contends that failure of the clerk to give the required notice deprived him of an opportunity for a psychiatric examination prior to his trial and conviction, and that this failure of notice constitutes a denial of a substantial legal right in contravention of the equal protection and due process clauses of the Fourteenth Amendment.

Other grounds relied upon by petitioner in the trial court and not pursued on this appeal were overruled by District Judge Henry L. Brooks in a well-reasoned memorandum opinion, 233 F. Supp. 949.

The recently adopted Kentucky Rules of Criminal Procedure provide petitioner with an adequate post-conviction review to seek a determination of the question presented under K.R.S. 203.340. R.Cr. 11.42 provides in part as follows:

"A prisoner in custody under sentence who claims a right to be released on the ground that the sentence was imposed in violation of the Constitution or statutes of the Commonwealth or of the United States, or that the court imposing the sentence was without jurisdiction to do so, or that the sentence was in excess of that authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed the sentence to vacate, set aside or correct the same."

This rule affords a post-conviction review comparable to the remedy provided federal prisoners by 28 U.S.C. § 2255. Ayers v. Davis, 377 S.W.2d 154 (Ky.1964). See also Moore v. Commonwealth, 380 S.W.2d 76 (Ky.1964); Etherton v. Commonwealth, 379 S.W.2d 730 (Ky.1964); Nolan v. Thomas, Warden, 230 F. Supp. 114 (W.D. Ky. 1964). Cf. McIntosh v. Commonwealth, 368 S.W.2d 331 (Ky. 1963) in which Rule 60.02 of the Kentucky Rules of Civil Procedure was used to raise a similar issue.

The record is clear that petitioner has not filed or attempted to file a motion pursuant to this rule in the court where he was convicted. Since petitioner has available to him a remedy in the state courts, the District Court properly denied the writ. Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837; Hampton v. Buchkoe, Warden, 334 F.2d 6 (C. A.6).

The Court expresses appreciation to Mr. Kenneth L. Bailey of the Cincinnati Bar, who presented an excellent brief and oral argument as court-appointed counsel for petitioner.

Affirmed.