United States District Court, E.D. Virginia, Richmond Division
(DISMISSING WITHOUT PREJUDICE 28 U.S.C. § 2254 PETITION)
HENRY E. HUDSON, District Judge.
Tina Brown-El, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition"). In her § 2254 Petition, Brown-El seeks to challenge her convictions in the "Prince George County Circuit Court, " "Prince George Juvenile and Domestic Relations Court, " and "Prince George General District Court" for two counts of "conspiracy - manuf/etc. controlled substance" and two counts of "child neglect." (§ 2254 Pet. 2 (capitalization corrected).) Brown-El indicates that she has not pursued an appeal or any post-conviction remedies in state court with respect to the above conviction. (Id. at 3-13.)
"As a general rule, in the absence of exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent, ' Bowen v. Johnston, 306 U.S. 19, 27 (1939), courts require[ ] exhaustion of alternative remedies before a prisoner can seek federal habeas relief.' Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (alteration in original) (parallel citation omitted) (quoting Boumediene v. Bush, 553 U.S. 723, 793 (2008)). In this regard, "[i]n the case of those detained by states, principles of federalism and comity generally require the exhaustion of available state court remedies before [the federal courts] conduct habeas review of the detention." Id. at 531 n.5 (citing Boumediene, 553 U.S. at 793). Thus, "federal courts should abstain from the exercise of [habeas] jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner." Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) (citations omitted); Durkin v. Davis, 538 F.2d 1037, 1041 (4th Cir. 1976) (internal quotation marks omitted) ("Until the State has been accorded a fair opportunity by any available procedure to consider the issue and afford a remedy if relief is warranted, federal courts in habeas proceedings by state [inmates] should stay their hand.").
Here, the issues raised by Brown-El may be resolved either by direct or collateral appeal. Brown-El fails to demonstrate that any exceptional circumstances warrant the consideration of his habeas petition at this time. Accordingly, Brown-El's § 2254 Petition and the action will be dismissed without prejudice because Brown-El has failed to exhaust available state remedies or demonstrate that exceptional circumstances warrant consideration of his petition at this juncture. See Williams v. Simmons, No. 3:10CV709-HEH, 2011 WL 2493752, at *1-2 (E.D. Va. June 22, 2011) (dismissing without prejudice similar habeas petition by pretrial detainee).
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA 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. ...