RENDERED: NOVEMBER 19, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1431-MR

CLEYON TANNER APPELLANT 

v. 

APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE

ACTION NO. 19-CR-00870

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.

LAMBERT, JUDGE: Cleyon Tanner 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 McCracken Circuit 

Court denied the motion. We affirm.

Pursuant to his guilty plea, Tanner was sentenced in December 2019 

to two years’ imprisonment for fleeing or evading police in the first degree. That 
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sentence was ordered to run consecutively to “any sentence received in any other 

indictment.”1 In August 2020, Tanner filed a motion for post-conviction relief 

under CR 60.02 and 60.03. The crux of the motion was Tanner’s assertion that he 

“is at increased risk of contracting the pandemic virus, 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.” 

Tanner did not mention having any specific medical condition which 

increases his risk of contracting, or dying from, the virus. Thus, his request for 

relief is based solely on his incarcerated status. Of course, as Tanner 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. Tanner briefly alleged that his continued 

incarceration during the pandemic violates the Eighth Amendment to the United 

States Constitution, made applicable to states via the Fourteenth Amendment. 

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

impose an alternative sentence, such as home incarceration.

 

1 Because it is not before us, we express no opinion on the propriety of Tanner’s sentence being 

ordered to run consecutively with all other sentences for all other indictments without any 

geographical, temporal, or other limitations. The only trial court record before us is from 

indictment 19-CR-00870. However, we note that the caption of Tanner’s CR 60.02 and 60.03 

motion lists indictment numbers 19-CR-00870, 19-CR-00872, and 19-CR-00484, but the trial 

court’s order denying the motion refers only to indictment 19-CR-00870, as does Tanner’s notice 

of appeal. Thus, we address only indictment 19-CR-00870.
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A little less than a month later, the McCracken Circuit Court denied 

the motion without the Commonwealth’s having filed a response. The court noted, 

accurately as we will discuss herein, that Kentucky precedent holds that CR 60.02 

relief is unavailable for circumstances unrelated to the underlying criminal 

proceedings. The court also held that Tanner had not presented sufficient grounds 

to receive relief under CR 60.03. Tanner then filed this appeal pro se.

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.”2 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

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 

 

2 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.
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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). Tanner has not alleged, much 

less shown, any factual errors in his judgment of conviction. In fact, Tanner 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 Tanner has not alleged any defects with his proceedings. 

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

motion is foreclosed by 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. 

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., Tanner cannot be entitled to relief based on only his

subjective fear of contracting COVID-19 while incarcerated. In fact, we have 
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rejected similar COVID-19-based arguments made by prisoners at least five 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).

3

 Simply put, since Thomas is not raising 

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

sentence, the trial court correctly held that he is not entitled to CR 60.02 relief.

Tanner also is not entitled to relief under CR 60.03. He 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), Tanner is not entitled to relief 

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

 

3 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.
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(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 arguments under 

CR 60.03 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.

Next, Tanner 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 

health needs of prisoners);4 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 

 

4

 Though Tanner 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. 21, 2021).
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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, Tanner’s reliance upon federal authority by which inmates 

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

v. Atwi, 455 F. Supp. 3d 426 (E.D. Mich. 2020), 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 428.5 But Tanner is a state 

prisoner and so, though he strenuously argues to the contrary, the federal 

compassionate relief program is not available to him. 

We also reject Tanner’s newfound arguments that the trial court 

somehow violated the Fourth and/or First Amendments to the United States 

Constitution by not granting his motion for compassionate release. First, as we 

previously stated, there is no compassionate release program available to state 

prisoners. Second, as the Commonwealth correctly notes in its responsive brief, 

Tanner did not even cite the First or Fourth Amendment as a basis for relief in his

motion. Both we and our Supreme Court have consistently “endorsed a rule that 

specific grounds not raised before the trial court, but raised for the first time on 

 

5 The compassionate release program does not inherently entitle federal prisoners to early 

release. For example, in a case cited by Tanner, 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). 
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appeal will not support a favorable ruling on appeal.” Norton Healthcare, Inc. v. 

Deng, 487 S.W.3d 846, 852 (Ky. 2016) (internal quotation marks and citations 

omitted). Third, Tanner has not explained exactly what specific relevance the First 

or Fourth Amendments have to his situation. Vague, inadequately explained, and 

underdeveloped claims do not merit appellate relief. See, e.g., Curty v. Norton 

Healthcare, Inc., 561 S.W.3d 374, 379 (Ky. App. 2018). 

Tanner also insists the trial court somehow interfered with what he 

characterizes as his constitutional right to freedom. The exact scope of Tanner’s 

argument is unclear. To the extent he refers to a right to freedom from 

incarceration, he forfeited any such right by committing a felony offense and then 

accepting a plea agreement which explicitly called for him to be incarcerated. 

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

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

 As we have previously noted in similarly affirming the denial of postconviction relief in Eaves, Tanner “may only receive early, pre-parole eligibility 

release via executive clemency[,]” which, as we have recently noted, Governor 

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

despite Tanner’s erroneously arguing to the contrary, the fact that Kentucky has 

long been in a declared state of emergency due to the COVID-19 pandemic does 

not entitle him to early release, or any other type of post-conviction relief.
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In conclusion, we are not unsympathetic to the COVID-19 concerns

of prisoners, including Tanner. 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, [Tanner] 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).6

For the foregoing reasons, the McCracken Circuit Court’s order 

denying Cleyon Tanner’s post-conviction motion is affirmed.

CETRULO, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Cleyon Tanner, pro se

Wheelwright, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky

 

6 We have considered all of Tanner’s scattershot arguments not explicitly discussed herein but 

conclude none provides a basis for disturbing the trial court’s decision.