RENDERED: AUGUST 6, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1145-MR
EUGENE WADE, JR. APPELLANT
APPEAL FROM WOLFE CIRCUIT COURT
v. HONORABLE KENNETH PROFITT, JUDGE
ACTION NO. 16-CR-00066
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
ACREE, JUDGE: Eugene Wade, Jr.1 appeals the Wolfe Circuit Court’s September
2, 2020 order overruling his motion to amend the final judgment. Wade asked the
circuit court to grant his request for home incarceration because he feared
1
Eugene Wade issued a “Nunc Pro Tunc Declaration of Nationality and At Will Right of Name
Correction.” We note that his preferred name is Yadiel Amarum Binyah, but this is not an
official, court-ordered name change.
contracting the COVID-19 virus in prison. On appeal, Wade argues the circuit
court erred in denying his request. Finding no error, we affirm.
BACKGROUND
Wade pleaded guilty to first-degree manslaughter, facilitation to
commit murder, and tampering with physical evidence. He received a total
sentence of fifteen years.
While serving his sentence, the COVID-19 pandemic swept the
nation. Out of fear of contracting the virus, Wade filed a motion to amend his
judgment under CR2 60.02 and CR 60.03. In that motion, Wade claimed that
because he is African American, and African Americans have a disproportionate
number of deaths, he should be released from custody and put on home
incarceration.
The circuit court held an evidentiary hearing at which Wade did not
put on any evidence. He only made unsworn statements that some of the guards
were not wearing appropriate facial coverings. He failed to offer evidence that the
correctional facility was ignoring the pandemic or making no effort to comply with
state and/or federal guidelines for penal institutions. Additionally, Wade candidly
told the circuit court that he suffered no physical condition that would place him in
an “at-risk” category.
2
Kentucky Rules of Civil Procedure.
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The circuit court considered the written motion and oral argument by
Wade and rendered a written order. In that order, the circuit court acknowledged
that COVID-19 was an understandable concern, but there were no facts in evidence
that would allow it to sustain Wade’s motion. Because of that, the circuit court
never reached a decision under the legal grounds available under CR 60.02, CR
60.03, the Eighth Amendment, or the Fourteenth Amendment.
STANDARD OF REVIEW
This Court reviews orders on CR 60.02 and CR 60.03 motions for
abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000)
(citation omitted); Rogers Group, Inc. v. Masterson, 175 SW.3d 630, 636 (Ky.
App. 2005) (citations omitted). “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citation
omitted). Constitutional questions are reviewed de novo. Phon v. Commonwealth,
545 S.W.3d 284, 290 (Ky. 2018) (citation omitted).
ANALYSIS
This is not the first review of a circuit court’s denial of a prisoner’s
release from incarceration based on alleged fears of contracting COVID-19. See
Morris v. Commonwealth, No. 2020-CA-1195-MR, 2021 WL 1933656 (Ky. App.
May 14, 2021); Gribbins v. Commonwealth, No. 2020-CA-0635-MR, 2021 WL
-3-
1164461 (Ky. App. Mar. 26, 2021); Williams v. Commonwealth, No. 2019-CA-
0964-MR, 2021 WL 943753 (Ky. App. Mar. 12, 2021). We see nothing in the
facts of this case to conclude the circuit abused its discretion when it denied
Wade’s motion.
CR 60.02 is designed to relieve a litigant from a judgment where there
has been “some significant defect in the trial proceedings or evidence at trial[.]”
Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985) (citing Wilson v.
Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966)). “The hardships cited by the
appellant have no relation to the trial proceedings or any additional undiscovered
evidence not presented at trial[.]” Id. The same is said here: the hardships suffered
by Wade, if any, are not related to the trial proceedings or undiscovered evidence.
As with the litigants who came before this court with similar COVID-
19 pandemic complaints, the facts he alleges occurred after entry of the judgment
and have nothing to do with reason for his conviction. Therefore, COVID-19 is
not an extraordinary circumstance entitling him to relief from his judgment of
conviction. Even in Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App.
2014), before the COVID-19 pandemic, this Court would not grant CR 60.02 relief
due to medical issues. “We are not insensitive to Ramsey’s unfortunate
circumstances [medical issues], but rather simply hold that the trial court correctly
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found that CR 60.02 is not the appropriate means for any potential relief to which
he may be entitled.” Id.
During the past year, this Court has consistently held that CR 60.03
does not authorize relief to litigants who failed to file a separate civil action. See
Morris, 2021 WL 1933656, at *2. This is because CR 60.03 provides:
Rule 60.02 shall not limit the power of any court to
entertain an independent action to relieve a person from a
judgment, order or proceeding on appropriate equitable
grounds. Relief shall not be granted in an independent
action if the ground of relief sought has been denied in a
proceeding by motion under Rule 60.02, or would be
barred because not brought in time under the provisions of
that rule.
Relief under CR 60.03 is unavailable to Wade because he failed to file a separate
civil action. Even if he had, relief would still be inappropriate because statutes and
regulations addressing probation and parole govern a convicted felon’s release
from prison. This Court cannot circumvent the executive branch by ordering early
release pursuant to CR 60.03 based solely on the COVID-19 pandemic.
To the extent Wade alleges a violation of his Eighth and Fourteenth
Amendment rights based on the conditions of his confinement, he must bring a
separate civil action against the warden where he is confined. Williams v.
Commonwealth, Nos. 2019-CA-0964-MR and 2020-CA-0638-MR, 2021 WL
943753, at *3 (Ky. App. Mar. 12, 2021) (“Conditions of confinement claims are
civil in nature; as such, the sentencing court is not the proper forum to address
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them.”). Additionally, the Eighth Amendment cannot provide Wade with the
specific relief he requests. Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir.
1990) (“[R]elief of an Eighth Amendment violation does not include release from
confinement.”); Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (“Assuming
[a]rguendo that his allegations of mistreatment demonstrate cruel and unusual
punishment, the petitioner still would not be entitled to release from prison. The
appropriate remedy would be to enjoin continuance of any practices or require
correction of any conditions causing him cruel and unusual punishment.”).
The circuit court was correct in denying Wade’s motions without
consideration of the legal grounds. Each of the legal avenues Wade tried to follow
were dead ends for him because each was premised upon or designed for other
relief. None was a pathway to his freedom.
CONCLUSION
For the foregoing reasons, we affirm the Wolfe Circuit Court’s
September 2, 2020 order.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Eugene Wade Jr., pro se Leilani K. M. Martin
West Liberty, Kentucky Frankfort, Kentucky
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