Ross v. Commonwealth of Kentucky, No. 3:2019cv00480 - Document 19 (W.D. Ky. 2020)
Court Description: OPINION AND ORDER DENYING HABEAS PETITION Signed by Judge Justin R. Walker on 5/12/2020. The Court GRANTS 10 Motion to Dismiss; DENIES as moot 11 Motion for Extension of Time to Answer; ADOPTS 16 Findings, Conclusion, and Recommendation in full. The Court OVERRULES Gregory Ross's 17 and 18 objections. The Court DISMISSES this case, and DENIES a Certificate of Appealability. cc: Counsel (DLW)
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Ross v. Commonwealth of Kentucky Case 3:19-cv-00480-JRW-LLK Document 19 Filed 05/13/20 Page 1 of 2 PageID #: 188 Doc. 19 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY GREGORY ROSS PETITIONER v. CIVIL ACTION NO. 3:19-CV-480-JRW-LLK COMMONWEALTH OF KENTUCKY DEFENDANT ORDER DENYING HABEAS PETITION 1. The Court DENIES Gregory Ross’s habeas petition (DN 1). 2. The Court GRANTS the Respondent’s motion to dismiss (DN 10). 3. The Court DENIES as moot the Respondent’s extension motion (DN 11). 4. The Court ADOPTS Magistrate Judge Lanny King’s Findings, Conclusion, and Recommendation (DN 16) in full. 5. The Court OVERRULES Gregory Ross’s objections (DNs 17 & 18). 6. The Court DISMISSES this case. 7. The Court DENIES a Certificate of Appealability. OPINION In 2010, Ross pled guilty in state court to custodial interference and sexual misconduct. His guilty plea was part of a pretrial diversion agreement. The details of that agreement are irrelevant. What does matter is that (1) Ross was no longer in state custody after March 2015, and (2) Ross filed this federal habeas petition in 2019.1 1 DN 16 at #176 & 177. 1 Dockets.Justia.com Case 3:19-cv-00480-JRW-LLK Document 19 Filed 05/13/20 Page 2 of 2 PageID #: 189 The Court lacks jurisdiction over a habeas petition unless the petitioner files the petition while “in custody.”2 This Court therefore lacks jurisdiction to consider Ross’s petition, which he filed four years after his state custody ended. Judge King reached the same conclusion in his Findings, Conclusions, and Recommendation.3 Ross objected to Judge King’s “in custody” holding, arguing that he is still “subject to sex offender laws and registration even after completing the diversion program.” 4 But compliance with such sex offender laws and registration does not render someone “in custody.”5 Finally, Ross is not entitled to a Certificate of Appealability because no reasonable jurist would find the jurisdictional question debatable.6 May 12, 2020 2 28 U.S.C. § 2254(a); see also, Hautzenroeder v. Dewine, 887 F.3d 737, 740 (6th Cir. 2018). DN 16. Because the jurisdictional conclusion is dispositive, there is no need to address Judge King’s other conclusions, or Ross’s objections to them. 4 DN 17 at #182. 5 887 F.3d at 744. 6 See Slack v. McDaniel, 529 U.S. 473, 483-4 (2000); see also, Moody v. United States, No. 195015 (6th Cir. May 6, 2020) (Thapar, J.) (In short, a court should not grant a certificate without some substantial reason to think that the denial of relief might be incorrect.”). 3 2
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