Donald H. Duke v. Stephen P. White and Charles Holmes

Sixth Circuit

Donald H. Duke v. Stephen P. White and Charles Holmes

616 F.2d 955, 1980 U.S. App. LEXIS 19897

CourtCourt of Appeals for the Sixth Circuit

DecidedMarch 5, 1980

Docket78-3055

StatusPublished

Cited by18 cases

This text of 616 F.2d 955 (Donald H. Duke v. Stephen P. White and Charles Holmes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Donald H. Duke v. Stephen P. White and Charles Holmes, 616 F.2d 955, 1980 U.S. App. LEXIS 19897 (6th Cir. 1980).

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PER CURIAM.

Appellant in this case appeals from an order dismissing his civil rights action against the trial court judge and the commissioner of the Kentucky Bureau of Corrections. His suit sought the expungement of the record of his state felony conviction in 1970 for possession of an illegal gambling contrivance. Appellant had previously appealed his conviction to the highest court of Kentucky, where it was affirmed unanimously. See Duke v. Commonwealth of Kentucky, 474 S.W.2d 885 (Ky.1972). There the Court of Appeals of Kentucky (then Kentucky’s highest court) held that a search of the premises of the Thoroughbred Sup[956]*956per Club by officers of the Alcoholic Beverage Control Board was authorized under Kentucky Statute KRS 241.090, even though no search warrant had been procured.

In this federal litigation, filed long after appellant had served his prison term, appellant sought to invoke jurisdiction under 28 U.S.C. §§ 1343, 1651 (1976); 42 U.S.C. § 1983 (1976), and the Fourth and Fourteenth Amendments to the Constitution of the United States. The only relief sought was that of an injunction to require the defendants to expunge the felony conviction previously affirmed by the Kentucky Supreme Court on the ground that the search of the premises which had resulted in seizure of the gambling device was a violation of the Fourteenth Amendment.

This action cannot be treated as a petition for writ of habeas corpus since appellant was not in custody in any fashion when the complaint was filed. The right to expungement of state records is not a federal constitutional right. Neither the Legislature of Kentucky nor the Congress of the United States has seen fit to adopt expungement statutes.

The judgment of the District Court dismissing the complaint is affirmed.

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PER CURIAM.

Appellant in this case appeals from an order dismissing his civil rights action against the trial court judge and the commissioner of the Kentucky Bureau of Corrections. His suit sought the expungement of the record of his state felony conviction in 1970 for possession of an illegal gambling contrivance. Appellant had previously appealed his conviction to the highest court of Kentucky, where it was affirmed unanimously. See Duke v. Commonwealth of Kentucky, 474 S.W.2d 885 (Ky.1972). There the Court of Appeals of Kentucky (then Kentucky’s highest court) held that a search of the premises of the Thoroughbred Sup[956]*956per Club by officers of the Alcoholic Beverage Control Board was authorized under Kentucky Statute KRS 241.090, even though no search warrant had been procured.

In this federal litigation, filed long after appellant had served his prison term, appellant sought to invoke jurisdiction under 28 U.S.C. §§ 1343, 1651 (1976); 42 U.S.C. § 1983 (1976), and the Fourth and Fourteenth Amendments to the Constitution of the United States. The only relief sought was that of an injunction to require the defendants to expunge the felony conviction previously affirmed by the Kentucky Supreme Court on the ground that the search of the premises which had resulted in seizure of the gambling device was a violation of the Fourteenth Amendment.

This action cannot be treated as a petition for writ of habeas corpus since appellant was not in custody in any fashion when the complaint was filed. The right to expungement of state records is not a federal constitutional right. Neither the Legislature of Kentucky nor the Congress of the United States has seen fit to adopt expungement statutes.

The judgment of the District Court dismissing the complaint is affirmed.

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616 F.2d 955, 1980 U.S. App. LEXIS 19897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donald-h-duke-v-stephen-p-white-and-charles-holmes-ca6-1980.

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