RENDERED: August 29, 2003; 2:00 p.m. NOT TO BE PUBLISHED
Commonwealth Of Kentucky Court of Appeals
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE REBECCA M. OVERSTREET, JUDGE INDICTMENT NO. 97-CR-01069
COMMONWEALTH OF KENTUCKY
** ** ** ** ** BEFORE: DYCHE, JOHNSON, AND PAISLEY, JUDGE On June 13, 1997, at 2:45 p.m., Osama Shalash was
shot to death in the parking lot of Perkins’ Restaurant on Richmond Road in Lexington, Kentucky. Erskin Thomas was found
guilty of Shalash’s murder and sentenced to life imprisonment without the possibility of parole for twenty-five years. His
conviction was affirmed by the Kentucky Supreme Court in Young v. Commonwealth, Ky., 50 S.W.2d 148 (2001). On October 29, 2001, Thomas filed for post-conviction relief pursuant to Kentucky Rule of Civil Procedure (CR) 60.02(f). He also moved for appointment of counsel and an The Fayette Circuit Court summarily denied Thomas appeals, arguing that
all relief on October 30, 2001.
the trial court erred in denying the CR 60.02(f) motion without first appointing counsel. Thomas concedes that he has no
constitutional right to be represented by counsel in this postconviction proceeding. 448 (2001). Fraser v. Commonwealth, Ky., 59 S.W.3d
However, arguing due process and equal protection
concerns, Thomas insists that counsel would have been able to correct deficiencies in his belatedly obtained affidavit from an alleged eyewitness who claimed that someone other than Thomas was the gunman. As the Commonwealth correctly points out, this claim of newly discovered evidence is governed by CR 60.02(b), which must be brought within one year of judgment. Thomas’s motion
pursuant to CR 60.02(f) allows relief for a “reason of an extraordinary nature.” Thomas fails to demonstrate that counsel
would have been able to make a colorable claim under CR 60.02(f). The trial court did not err in denying Thomas’s
motion for appointment of counsel.
The order of the Fayette Circuit Court is affirmed.
BRIEF FOR APPELLANT: Erskin Thomas, Pro Se Eddyville, Kentucky
BRIEF FOR APPELLEE: Albert B. Chandler III Attorney General of Kentucky Kent T. Young Assistant Attorney General Frankfort, Kentucky