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Sparks v. Clarke

United States District Court, E.D. Virginia, Richmond Division

March 10, 2016

CLIFTON I. SPARKS, Petitioner,
HAROLD W. CLARKE, Respondent.



Clifton I. Sparks, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his convictions in the Circuit Court of Chesterfield County, Virginia ("Circuit Court"). On November 17, 2015, the Magistrate Judge issued a Report and Recommendation that recommended dismissing Sparks's § 2254 Petition without prejudice because of Sparks's failure to exhaust state court remedies. (ECF No. 5.) Sparks has filed an objection. (ECF No. 7.) For the reasons that follow, Sparks's objection will be OVERRULED, and the action will be DISMISSED WITHOUT PREJUDICE.


The Magistrate Judge made the following findings and recommendations:

A. Procedural History

After a bench trial, the Circuit Court convicted Sparks of five counts of possession of schedule I/II drugs with the intent to distribute and one count of possession of schedule III drugs with the intent to distribute. (§ 2254 Pet. ¶ 5.) According to Sparks, the Circuit Court sentenced Sparks to a three-and-a-half year active term of imprisonment. (Id. ¶ 3.) Sparks appealed, and the Court of Appeals of Virginia dismissed the appeal because counsel failed to file the requisite transcripts. (Id. ¶ 9(e); id. Ex. 22, at 1-3.) Sparks then filed a petition for a writ of habeas corpus in the Circuit Court. (Id. ¶ 11(a).) Additionally, Sparks filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. (Id. ¶ 11(b)). On September 22, 2014, the Supreme Court of Virginia granted Sparks the right to seek a delayed appeal. (See Id. Ex. 43, at 1-2.)
On October 30, 2014, Sparks noted his second appeal to the Court of Appeals of Virginia.[1] On September 21, 2015, the Court of Appeals of Virginia denied Sparks's request for a three-judge panel to review his petition. On October 22, 2015, Sparks filed his petition for appeal with the Supreme Court of Virginia.[2]That appeal is currently pending.
On August 18, 2015, the Court received Sparks's § 2254 Petition. In his § 2254 Petition, Sparks acknowledges that "the petitioner of pro se status knows the belated appeal hasn't been initiated and the Supreme Court writ isn't successive. The habeas corpus claim[s] have not been adjudicated on their merits and are subject to 'piecemeal litigations.'" (§ 2254 Pet. ¶ 18 (punctuation corrected).) He concedes that "the petitioner filed the federal habeas corpus in advance, so the federal petition isn't barred. The petitioner appeal process started August 15, 2013 and hasn't been resolved." (Id. (capitalization corrected).)

B. Exhaustion and Procedural Default

1. Applicable Law

Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion '"is rooted in considerations of federal-state comity, '" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "'opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary 'opportunity, ' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present '"both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 311 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
In Virginia, to exhaust state remedies, a "petitioner must present the same factual and legal claims raised in the instant petition to the Supreme Court of Virginia either by way of (i) a direct appeal, (ii) a state habeas corpus petition, or (iii) an appeal from a circuit court's denial of a state habeas petition." Sparrow v. Dir., Dep't of Corr., 439 F.Supp.2d 584, 587 (E.D. Va. 2006); see also Va. Code Ann. § 8.01-654(A)(1) (West 2014). '"Whichever route the inmate chooses to follow, it is clear that [the inmate] ultimately must present his [federal habeas] claims to the Supreme Court of Virginia and receive a ruling from that court before a federal district court can consider them.'" Banks v. Johnson, No. 3:07CV746-HEH, 2008 WL 2566954, at *2 (E.D. Va. June 26, 2008) (second alteration added) (quoting Graham v. Ray, No. 7:05cv00265, 2005 WL 1035496, at *2 (W.D. Va. May 3, 2005)); see also Sparrow, 439 F.Supp.2d at 587.
It is unclear from the record whether Sparks has raised all of the claims in his instant petition before the Supreme Court of Virginia. Nevertheless, the record clearly shows that even if Sparks has presented all of the claims he raises in the instant § 2254 Petition to the Supreme Court of Virginia, he has not received a ruling from the ...

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