United States District Court, E.D. Virginia, Alexandria Division
July 1, 2015
Lian J. Ross, Petitioner,
Warden, Hampton Roads Regional Jail, Respondent.
CLAUDE M. HILTON, District Judge.
Lian J. Ross, a Virginia inmate proceeding etq pro se has filed petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a conviction of probation violation entered in the Gloucester County Circuit Court. Respondent has filed a Rule 5 Answer and a Motion to Dismiss with a supporting brief, and has provided petitioner the notice required by Roseburg v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K). Inresponse, petitioner has filed a Counter-Affidavit to Respondent's Rule 5 Answer and Motion to Dismiss. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed for petitioners failure to exhaust the claims presented. Petitioners pending motions for an extension of time and appointment of counsel will be denied, as moot.
Petitioner states that he was convicted of what he describes as a "technical" violation of his probation in the Gloucester County Circuit Courtin the fall of 2011. Pet. at 1. He there after filed an application for a state writ of habeas corpus in the Gloucester County Circuit Court, raising the same claims he makes in this federal proceeding. Pet. at 2, 6. Relief was denied, and petitioner perfected no appeal of that result in the Supreme Court of Virginia. Pet. at 6. Petitioner also sent a Notice of Tort Claim to the Virginia Attorney General's Office. Pet. at 4.
On April 23, 2015, respondent filed a Rule 5 Answer and a Motion to Dismiss with a supporting memorandum, arguing that the petition must be dismissed as the claims raised are unexhausted and procedurally barred. In response, petitioner filed a "Counter-Affidavit" admitting that his claims have not been presented to the Supreme Court of Virginia. Accordingly, this matter is now ripe for disposition. For the reasons which follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed.
Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. See28 U.S.C. § 2254(b); Granberrv v. Greer, 481 U.S. 129 (1987); Rose V. Lundy. 455 U.S. 509 (1982); Preiser v. Rodriguez, 411 U.S. 475 (1973). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia must first have presented the same factual and legal claims raised in his § 2254 application to the Supreme Court of Virginian direct appeal, or in a state habeas corpus petition. See, e.g., Duncanv. Henry, 513 U.S. 364 (1995); Kasi v. Aneelone, 300 F.3d 487, 501-02 (4th Cir. 2002). Here, since petitioner concededly perfected no appeal to the Supreme Court of Virginia after the trial court denied relief on his current claims, see Dkt. 19, the claims remain unexhausted.
"A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law ifthe petitioner attempted to present it to the state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)). Importantly, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim." Id. (quoting Gray, 518 U.S. at 162). Here, petitioner's unexhausted claims are incapable of exhaustion, because the thirty-day period during which he could have noticed an appeal of the denial of his state habeas corpus petition to the Supreme Court of Virginia has expired. Cf. Va. Supr. Ct. R. 5:9. Therefore, the claims are procedurally defaulted.
Federal courts may not review barred claims absent a showing of cause and prejudice, such as actual impotence. Harris, 489 U.S. at 260. The existence of cause ordinarily turns upon a showing of (1) a denial of effective assistance of counsel, (2) a factor external to the defense which impeded compliance with the state procedural rule, or (3) the novelty of the claim. See Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); Clozza v. Murray, 913 F.2d 1092, 1104 (4thCir. 1990). Importantly, a courtneednot consider the issue of prejudice in the absence of cause. See Komahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995), cert, denied sub, nom Komahrens v. Moore, 517 U.S. 1171 (1996).
In his "Counter-Affidavit, " petitioner states that when he filed his petition for habeas corpus relief in the Gloucester Circuit Court in October, 2014, the Clerk's Office returned the petition with a note stating that it was not properly notarized. Dkt. 19 at 1. After petitioner demonstrated that the documents were properly notarized, the Clerk's Office returned them again with a notation that service was not properly perfected on the Virginia Department of Corrections. Id. Petitioner "outlined problems with getting documents notarized, copies made etc. and Gloucester County Clerk's Office neither responded or returned the documents." Id. Petitioner contends that these actions demonstrate that "Gloucester County Circuit Court is colluding with the Gloucester County Probation and Parole Dept. to keep this case from being heard on its merits and using false, petty, technical excuses to keep the case from being heard." Id. at 1-2.
Petitioner's explanation falls short of demonstratinig cause for the procedural default of his current claims. First, it is unclear from petitioner's description whether the difficulties he describes were encountered when he filed the habeas petition itself, or later, when he tried unsuccessfully to file an appeal. Only the latter would be relevant to his current situation. But assuming without deciding that it was an appeal of the denial of his habeas corpus application that petitioner was thwarted from filing, his description of events do not suggest that a "factor external to the defense... impeded compliance with the state procedural rule[s]." Rather, it appears that petitioner him self failed to comply with the requirements that his court paperers properly notarized and served on the respondent.
Petitioner's also appears to contend that providing a Notice of Tort Claim to the Attorney General should be deemed to have achieved exhaustion because" the claims and affidavits and facts are essentially interchangeable for both habeas actions and the Tort Claim, " Dkt. 19 at 2, but his argument is misplaced. As noted above, compliance with the exhaustion requirement requires that a state prisoner"complete [one] round of the State's established appellate review process, " O'Sullivan, 526 U.S. at 845, and that each claim he wishes to raise in federal court must first have been reviewed by the Supreme Court of Virginia. Duncan, 513 U.S. at 364. The asserted fact that petitioner presented tort claims to the Attorney General thus is irrelevant to the determination of whether exhaustion of a habeas claim has been achieved. Because petitioner has not brought the claims he raises here in the Supreme Court of Virginia, and because the time during which he could do has expired and he has failed to show cause and prejudice for that default, the claims must be dismissed.
For the foregoing reasons, respondent's Motion to Dismiss will be granted, and this petition will be dismissed, with prejudice. Petitioner's pending motions will be dismissed, as moot. An appropriate Order shall issue.