United States District Court, E.D. Virginia, Richmond Division
January 31, 2014
JUSTIN LEE GIDDENS, Plaintiff,
HENRICO COUNTY, Defendant.
MEMORANDUM OPINION (Dismissing § 2254 Petition Without Prejudice)
HENRY E. HUDSON, District Judge.
Petitioner, a Virginia state prisoner proceeding pro se, submitted a 28 U.S.C. § 2254 petition. By Memorandum Order entered on January 13, 2014, the Court directed Petitioner within eleven (11) days of the date of entry thereof to show good cause why the present petition should not be dismissed without prejudice to Petitioner's exhaustion of his state court remedies. The Court warned Petitioner that the failure to comply with the Court's directive would result in summary dismissal of the action.
More than eleven (11) days have elapsed since the entry of the January 13, 2014 Memorandum Order and Petitioner has not responded. Accordingly, the action will be dismissed without prejudice.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.' Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). No law or evidence suggests that Petitioner is entitled to further consideration in this matter. The Court will deny Petitioner a COA.
An appropriate order will accompany this Memorandum Opinion.