Leonard L. Martin v. Commonwealth of Kentucky

                RENDERED: JANUARY 14, 2022; 10:00 A.M.
                         TO BE PUBLISHED

            OPINION OF NOVEMBER 19, 2021, WITHDRAWN

               Commonwealth of Kentucky
                         Court of Appeals

                            NO. 2020-CA-1254-MR

LEONARD MARTIN                                                    APPELLANT


                APPEAL FROM FLOYD CIRCUIT COURT
v.             HONORABLE JOHNNY RAY HARRIS, JUDGE
                     ACTION NO. 03-CR-00110


COMMONWEALTH OF KENTUCKY                                            APPELLEE


                                  OPINION
                                 AFFIRMING

                                 ** ** ** ** **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Leonard Martin filed a post-conviction motion under

Kentucky Rules of Civil Procedure (CR) 60.02 and 60.03 asking to be released

from incarceration due to fear of contracting COVID-19. The Floyd Circuit Court

denied the motion. We affirm.
               In 2005, Martin was convicted of sexual abuse in the first degree and

sodomy in the first degree in the Floyd Circuit Court, for which he was sentenced

to a total of twenty-five years’ imprisonment. Our Supreme Court affirmed his

conviction on direct appeal and we later affirmed the trial court’s denial of

Martin’s motion for post-conviction relief.1

               This appeal involves Martin’s May 2020 motion for post-conviction

relief under CR 60.02 and 60.03. The crux of the motion is Martin’s assertion that

he is “at increased risk of contracting SARS-CoV2 (COVID-19), a novel virus,

which poses a large risk to public health that may be alleviated, in part, by release

of persons from confinement in close quarters.” Record (“R.”) at 441. Martin

asserts in the motion that he is particularly susceptible to COVID-19 due to, for

example, being a senior citizen and having had a heart attack while incarcerated.2

               Of course, as Martin notes, inmates are vulnerable to the virus since

they are unable to practice some of the remediation measures scientists and

physicians have urged the general public to undertake, such as social distancing.



1
 Martin v. Commonwealth, 170 S.W.3d 374 (Ky. 2005); and Martin v. Commonwealth, No.
2010-CA-000671-MR, 2012 WL 752018 (Ky. App. Mar. 9, 2012). See also Martin v.
Beckstrom, No. CIV.A. 12-83-KSF, 2013 WL 3192895 (E.D. Ky. Jun. 21, 2013).
2
 Though not discussed in his motion, Martin’s appellate brief alleges he has tested positive for
COVID-19. He does not cite to any medical notes in the record confirming that test result.
Regardless, Martin is not entitled to post-conviction relief even if we assume, for the sake of
argument, that he has tested positive for the virus. Martin does not argue that corrections
officials failed to provide him necessary and appropriate medical care after his positive test.

                                               -2-
Martin briefly alleged that his continued incarceration during the pandemic

violates the Eighth and Fourteenth Amendments to the United States Constitution.

Martin asked the trial court to suspend further execution of his sentence or to

impose an alternative sentence, such as home incarceration. The Floyd Circuit

Court denied the motion without analysis and without the Commonwealth’s having

filed a response. Martin then filed this appeal pro se.3

                 As it pertains to this case, CR 60.02(f) permits a court to grant relief

in circumstances of an “extraordinary nature justifying relief.” CR 60.03 similarly

permits a court to grant relief upon “appropriate equitable grounds.”4 Our

Supreme Court has held there is a “high standard for granting a CR 60.02 motion,”

because relief under that rule is meant to be “special” and “extraordinary.” Barnett

v. Commonwealth, 979 S.W.2d 98, 101-02 (Ky. 1998). “[B]ecause of the

desirability of according finality to judgments, CR 60.02(f) must be invoked only




3
  Martin’s brief is not in full compliance with the requirements of CR 76.12. For example, it
does not contain statements regarding whether and how his arguments were preserved for
appellate review, as is required by CR 76.12(4)(c)(v), or ample citations to the record, as is
required by CR 76.12(4)(c)(iv) and (v). We have leniently elected to ignore the deficiencies.
However, we caution Martin that we may strike any future noncompliant brief. See CR 76.12(8).
4
    CR 60.03 provides in relevant part that:

          Rule 60.02 shall not limit the power of any court to entertain an independent
          action to relieve a person from a judgment . . . 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.

                                                  -3-
with extreme caution, and only under most unusual circumstances.”

Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App. 2004). A trial

court’s ruling on a CR 60.02 motion “receives great deference on appeal and will

not be overturned except for an abuse of discretion.” Barnett, 979 S.W.2d at 102.

             CR 60.02 “replaced the common law writ of coram nobis. That writ,

however, was aimed at correcting factual errors, not legal errors.” Leonard v.

Commonwealth, 279 S.W.3d 151, 161 (Ky. 2009). Martin has not alleged, much

less shown, any factual errors in his judgment of conviction. In fact, he has not

argued, or shown, that there are any errors of any kind in the judgment. CR 60.02

“specifically functions to address significant defects in the trial proceedings[,]”

Ramsey v. Commonwealth, 453 S.W.3d 738, 739 (Ky. App. 2014), and Martin has

not alleged any defects with his proceedings.

             Moreover, Martin’s arguments to the contrary notwithstanding, his

motion runs contrary to precedent. Family hardships and emotional trauma are not

a proper basis for CR 60.02 relief because such factors “have no relation to the trial

proceedings . . . .” Wine v. Commonwealth, 699 S.W.2d 752, 754 (Ky. App. 1985).

Instead, such concerns “are more appropriately a consideration of the parole

boards.” Id. Similarly, “physical ailments of a defendant are not tantamount to

trial defects” and thus do not warrant CR 60.02 relief. Ramsey, 453 S.W.3d at 739.




                                          -4-
              We do not intend to minimize Martin’s health concerns, but if a

prisoner who actually suffers from “multiple life threatening medical issues which

required medical treatment unavailable to him while incarcerated” is not entitled to

CR 60.02 relief, id., Martin cannot be entitled to relief based on his subjective fears

regarding COVID-19. In fact, we have rejected similar COVID-19-based

arguments made by prisoners at least six times. Morris v. Commonwealth, No.

2020-CA-1195-MR, 2021 WL 1933656 (Ky. App. May 14, 2021); Williams v.

Commonwealth, No. 2019-CA-0964-MR and No. 2020-CA-0638-MR, 2021 WL

943753 (Ky. App. Mar. 12, 2021); Gribbins v. Commonwealth, No. 2020-CA-

0635-MR, 2021 WL 1164461 (Ky. App. Mar. 26, 2021); Thomas v.

Commonwealth, No. 2020-CA-1081-MR, 2021 WL 3117200 (Ky. App. Jul. 23,

2021); Eaves v. Commonwealth, No. 2020-CA-1276-MR, 2021 WL 3818113 (Ky.

App. Aug. 27, 2021); Wade v. Commonwealth, No. 2020-CA-1145-MR, 2021 WL

3435530, at *2 (Ky. App. Aug. 6, 2021).5 Simply put, since Martin is not raising

any claims of error stemming from his prosecution, including his guilty plea and

sentence, he is not entitled to CR 60.02 relief.




5
  Under CR 76.28(4)(c), unpublished opinions rendered after January 1, 2003 may be cited “if
there is no published opinion that would adequately address the issue before the court.” The
parties have not cited, nor have we independently located, any published Kentucky opinions
addressing the relationship between CR 60.02, CR 60.03, the Eighth Amendment, and the
COVID-19 pandemic.

                                              -5-
             Martin also is not entitled to relief under CR 60.03. Martin did not

file a separate, independent action, as is envisioned by the plain language of that

rule. See, e.g., Morris, 2021 WL 1933656, at *2. Moreover, CR 60.03 “is

intended as an equitable form of relief when no other avenue exists.” Meece v.

Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017). So, because his argument on

the same core grounds fails to satisfy CR 60.02(f), Martin is not entitled to relief

under CR 60.03. Foley v. Commonwealth, 425 S.W.3d 880, 888 (Ky. 2014)

(quoting CR 60.03) (“Appellant is not entitled to relief under CR 60.02. As such,

in effect, the ‘relief sought [in his CR 60.03 action] has been denied in a

proceeding by motion under Rule 60.02.’ It follows that Appellant is not entitled

to relief under CR 60.03.”). We have repeatedly rejected similar CR 60.03

arguments made by inmates during the pandemic. Morris, 2021 WL 1933656, at

*2; Williams, 2021 WL 943753, at *2-3; Gribbins, 2021 WL 1164461, at *2;

Thomas, 2021 WL 3117200, at *2; Eaves, 2021 WL 3818113, at *2; Wade, 2021

WL 3435530, at *2.

             Next, Martin has not shown he is entitled to relief pursuant to the

Eighth or Fourteenth Amendments. The precise parameters of his claims are not

clear. Regardless, we have rejected similar COVID-19-based claims and do so

here again, for the same fundamental reasons. Gribbins, 2021 WL 1164461, at *2-

3 (holding that the Kentucky Department of Corrections was not indifferent to the


                                          -6-
health needs of prisoners);6 Williams, 2021 WL 943753, at *3 (holding that Eighth

Amendment claims involve the conditions of the movant’s confinement and thus

are civil claims which are not properly brought in the sentencing court); Morris,

2021 WL 1933656, at *2 (holding that Eighth and Fourteenth Amendment

conditions of confinement claims must be raised in civil actions by naming the

warden of the movant’s institution as a named party and, in any event, success on

those claims would not result in the claimant being released from incarceration).

               In addition, Martin’s reliance upon federal authority by which inmates

were granted early release due to the COVID-19 pandemic, such as United States

v. Foster, No. 1:14-cr-324-02, 2020 WL 6882941, at *2 (M.D. Pa. Apr. 3, 2020)

(unpublished), is misplaced. There is a federal statute specifically permitting

convicted and incarcerated defendants to be granted compassionate (i.e., early)

release by courts. See id. at *2.7 But Martin is a state prisoner and so, though he

strenuously argues to the contrary, the federal compassionate relief program is not



6
  Though Martin obviously believes them to be inadequate, the Kentucky Department of
Corrections has outlined the steps it has taken to minimize the COVID-19 health risks to
prisoners. See Key Initiatives, KENTUCKY DEPARTMENT OF CORRECTIONS
https://corrections.ky.gov/Facilities/Documents/COVID-19/DOC%20Key%20Initiatives%201-
26-21.pdf (last visited Sep. 28, 2021).
7
  The compassionate release program does not inherently entitle federal prisoners to early
release, even if they have significant health concerns. For example, a prisoner was denied
compassionate relief despite having increased COVID-19 risks stemming from serious health
conditions, including having partial paralysis and a blood disorder that caused him to have four
strokes. United States v. Ruffin, 978 F.3d 1000 (6th Cir. 2020).



                                               -7-
available to him. Instead, as we have previously noted in affirming the denial of

post-conviction relief in the similar case of Eaves, supra, Martin “may only receive

early, pre-parole eligibility release via executive clemency[,]” which Governor

Beshear has granted to some inmates. Eaves, 2021 WL 3818113, at *3.

              In sum, denying an unmeritorious CR 60.02/60.03 motion–which

Martin’s is–violates no federal or state constitutional provisions.

              In conclusion, we are not unsympathetic to the COVID-19 concerns

of prisoners, including Martin. Nonetheless, the pandemic does not entitle

prisoners to post-conviction relief. As we recently held in Eaves:

                  The COVID-19 pandemic is a worldwide crisis and
              tragedy of epic proportions which has caused significant
              fear and has upended previously settled societal and
              governmental norms. Nonetheless, [Martin] has not
              shown the pandemic entitles him, despite his health
              concerns, to be released early from incarceration. Thus,
              the trial court did not abuse its discretion, or otherwise
              err, in denying his motion.

Eaves, 2021 WL 3818113, at *3 (footnote omitted).8

              For the foregoing reasons, the Floyd Circuit Court’s order denying

Leonard Martin’s post-conviction motion is affirmed.

              ALL CONCUR.




8
 We have considered all of Martin’s scattershot arguments not explicitly discussed herein but
conclude none provides a basis for disturbing the trial court’s decision.

                                              -8-
BRIEF FOR APPELLANT:      BRIEF FOR APPELLEE:

Leonard Martin, pro se    Daniel Cameron
West Liberty, Kentucky    Attorney General of Kentucky

                          Perry T. Ryan
                          Assistant Attorney General
                          Frankfort, Kentucky




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