Major v. Commonwealth of Kentucky, No. 5:2014cv00252 - Document 3 (E.D. Ky. 2014)
Court Description: MEMORANDUM OPINION & ORDER: (1) DENYING Major's 1 Motion to Vacate; (2) DENYING AS MOOT Major's Demand for Jury Trial; (3) the court will enter a judgment with this order; (4) matter is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 6/27/14.(KJR)cc: COR, Major (US Mail)
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I I , Eastern D1str1ot of Kentucky I F I LED UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON I JUN 2 7 201~ AT LEXINGTON CHRISTOPHER M. MAJOR, I ) ) Petitioner, ROBERT R. CARR CLERK U.S. DISTRICT COURT " ) Civil No.5: 14-2f2-KKC ) V. ) ) COMMONWEALTH OF KENTUCKY, ) ) Respondent. MEMORANDUM ;OPINION ANDORDfR ) I *** *** *** *** This matter is before the Court upon the "Motion to Vacate Pursuant to the U.S. Const., I i Federal Civil Judicial Procedure and Rules, and the Emancipation proc1aimrion (sic)," [R. 1] and "Demand for Jury Trial Pursuant to Rule 38" [R. 2] filed by Christopher~. Major. On April 26, 2008, Major pled guilty in the Circuit Court of Kentucky, to a four-count indictment charging him with (1) driving under ~essamine County, ~e influence - his 1 fourth or subsequent offense within a five-year period; (2) driving under tll,b influence with a suspended license - second offense; (3) receiving stolen property worth ovel $300.00; and (4) being a first-degree persistent felony offender, The Jessamine Circuit Court I'mposed a 15- year sentence in light of the PFO enhancement. Major recently filed a motion requfsting resentencing pursuant to Ky. Rev. Stat. 532.080(3), which the Circuit Court denied 0 I March 20, 2014. Commonwealth v, Major, No. 07-CR-190 (Jessamine Cir. Ct. 2007). See Majl r v. Kentucky, No. 5: 14-1 88-JMH (E.D. Ky. 2014) [R. 1-1, p. 1-8 therein] (hereinafter Major /). Major then filed a "Notice of Removal" of that action to this Court jon May 14, 2014, seeking immediate release pursuant to a number of federal statutes, including 28 U.S.C. § 2254. Major 1 [R. 1 therein]. On June 3, 2014, Major also filed in that action a 'Motion for Relief 1 Pursuant to Rule 60," [R. 4 therein]; a "Motion to Vacate Pursuant to the US. Const., Federal Civil Judicial Procedure and Rules, and the Emancipation Proclaimation (sic)," [R. 5 therein]; a "Motion for Assitance (sic) of Counsel," [R. 6 therein]; a "Demand for JurJ Trial Pursuant to I Rule 38," [R. 6-1 therein]; and a "Petition for Declaration of Rights pursrt to 28 U.S.c. § 2241," [R. 7 therein] These motions were received in this Court and docketed in Major Ion June 11,2014. Before the motions were received, this Court dismissed and remanded hat action on June 5, 2014, noting that Major's notice of removal under 28 U.S.C. § 1455 was lntimelY; failed to allege a deprivation of constitutional rights predicated upon racial diSc4inatiOn under 28 U.s.C. § 1443(1); and was unwarranted because his criminal prosecution was to longer pending. [R. 3 therein (citing Major v. Com., No. 2008-CA-001855-MR, 2009 WL 4060490 (Ky. App. Nov. 25, 2009»]. Major filed a notice of appeal from that decision on Junll9, 2014. [R. 8 therein] The Court then denied Major's five ancillary motions on jurisdictio. al and substantive grounds on June 25, 2014. [R. 10 therein] Following the dismissal of his case, on June 16,2014, Major sent new photocopies of his motions for relief - identical in all respects to the ones he filed in MajOr I except for the omission of the prior case number - in three separate envelopes. Each envelope contained a copy of his "Demand for Jury Trial Pursuant to Rule 38"; one contained M jor's "Motion for Relief Pursuant to Rule 60," which has been docketed as Major v. Kentucky, No.5: 14-cv-250 KKC (E.D. Ky. 2014); a second contained Major's "Petition for Declaration of Rights Pursuant to 28 U.S.C. § 2241," which has been docketed as Major v. Kentucky, No. : 14-cv-251-DCR (E.D. Ky. 2014); and a third contained Major's "Motion to Vacate Pursuant 0 2 the U.S. Const., Federal Civil Judicial Procedure and Rules, and the Emancipation Proclaim~tion (sic)," has been docketed as Major v. Kentucky, No.5: 14-cv-252-KKC (E.D. Ky. 20~4). te which I In the "Motion to Vacate ... " Major filed in this case, he states that Commonwealth of Kentucky lacked jurisdiction over him and has violated his civil and constitutional rights by imposing the sentence of imprisonment upon him, and the Court to release [R. I, pp. 1-3] ~im from custody. Major' s request for the Court to vacate his criminal 10nvictions by the Commonwealth of Kentucky seeks, in essence, federal habeas relief from a Istate conviction, a request which must be pursued under 28 U.S.C. § 2254: I [W]hen a prisoner begins in the district court, § 2254 and all associat~d statutory requirements [including COA's under § 2253, if applicable] apply no tatter what statutory label the prisoner has given the case. (Roughly speaking, jthis makes § 2254 the exclusive vehicle for prisoners in custody pursuant to a I state court judgment who wish to challenge anything affecting that custody, becaJse it makes clear that bringing an action under § 2241 will not permit the prisonbr to evade the requirements of § 2254.) Greene v. Tennessee Dep't of Carr., 265 F.3d 369, 371 (6th Cir. 2001) (quoting Walker v. 1 O'Brien, 216 F.3d 626, 637 (7th Cir. 2000). If Major wishes to pursue feder 1 habeas relief, he must file a habeas petition under § 2254, not request relief under the general rubric of a motion to vacate. The Court could, of course, recharacterize Major's "Motion to Vaca e ... " as a § 2254 petition with his consent after providing the warnings required by Castro v. pnited States, 540 U.S. 375, 381·83 (2003). But Major's § 2254 petition would be time·bArred. sentenced on April 26, 2008, and does not appear to have taken any direct Major was a~peal, as he filed a I motion for collateral relief pursuant to RCr 11.42 on September 18,2008. See Major v. Com., No. 2011·CA·000459·MR, 2012 WL 3136814 (Ky. App. Aug. 3, 2012). Iflso, the limitations period under 28 U.S.C. § 2244(d)(1)(A) one year after the petitioner's convction became final 3 I on direct review - expired on or about May 26,2009. Because any recharac1erization would be futile in light of a clear time bar, the Court will simply deny Major's "Motirn to Vacate ..." as procedurally improper. Cj Arbing v. United States, No. I1-CV-286-WDS, 1011 WL 6122557 ,at *2 (S.D. Ill. Dec. 8,2011) (declining to recharacterize petition as initial § 255 motion where it was time-barred) (citing United States v. Martin, 357 F.3d 1198, 1200 (lOthlcir. 2004) (district court's failure to notify the petitioner of recharacterization was harmless erro~ because it "would not change the fact that the limitation period for filing a § 2255 motion had 10 g since passed.")). Accordingly, IT IS ORDERED that: 1. Christopher M. Major's "Motion to Vacate Pursuant to the US. Const., Federal Civil Judicial Procedure and Rules, and the Emancipation Proc1aimati01 (sic)" [R. 1] is DENIED. ! 2. Major's "Demand for Jury Trial Pursuant to Rule 38" [R. 21] is DENIED AS I I MOOT. 3. The Court will enter a judgment contemporaneously with this drder. 4. This matter is STRICKEN from the active docket. 1 This the1tfay of June, 2014. ~By: K; Ie United States .: trict Judge 4
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