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Gaither v. Zook

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

May 3, 2017

DAVH ZOOK, Respondent.



         Torian Gaither, 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 the City of Hampton, Virginia ("Circuit Court"). On December 1, 2016, the Magistrate Judge issued a Report and Recommendation that recommended dismissing Gaither's § 2254 Petition as procedurally defaulted and, in the alternative, as lacking in merit. (ECF No. 18.) Gaither filed objections. (ECF No. 19.) On January 18, 2017, the Magistrate Judge issued an Amended Report and Recommendation that corrected an inconsistency in the Report and Recommendation. (See ECF No. 21.) The Court explained that "in the original Report and Recommendation, the Court declined to decide whether Gaither had established cause to excuse his default." (ECF No. 20, at 1 n.l.) The Court further noted: "Although not raised by Gaither, the Court now issues an Amended Report and Recommendation that conclusively addresses any cause[] to excuse Petitioner's procedural default and recommends that Petitioner's claim be dismissed as procedurally defaulted, and in the alternative, as lacking in merit." (Id. at 1.) The Court advised Gaither that he could file objections within fourteen (14) days after the entry of the Amended Report and Recommendation. (ECF No. 21, at 10.) Gaither did not respond to the Amended Report and Recommendation. Accordingly, by Memorandum Opinion and Order entered on February 10, 2017, the Court overruled Gaither's objection to the original Report and Recommendation, accepted and adopted the Amended Report and Recommendation, and dismissed the action. (ECF Nos. 22, 23.)

         On February 10, 2017, the same day that the Court dismissed the action, the Court received Gaither's objections to the Amended Report and Recommendation ("Objections, " ECF No. 24). On March 9, 2017, the Court received Gaither's Notice of Appeal. (ECF No. 25.) While Gaither has not sought reconsideration of the Court's February 10, 2017 Memorandum Opinion, the Court treats Gaither's Objections, in part, as a motion filed pursuant to Federal Rule of Civil Procedure 59(e) ("Rule 59(e) Motion"). See MLCAuto., LLC v. Town of S. Pines, 532 F.3d 269, 277-78 (4th Cir. 2008) (filings made within twenty-eight days after the entry of judgment construed as Rule 59(e) motion (citing Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978))).

         I. RULE 59(e)

         The United States Court of Appeals for the Fourth Circuit has recognized three grounds for relief under Rule 59(e): "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. v. Koppers Co., Ill. F.Supp. 1406, 1419 (D. Md. 1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)). Gaither's Objections indicate that he placed them in the prison mail system for mailing to this Court on January 31, 2017, within the fourteen-day period allowed to file objections. (ECF No. 24, at 8.) The Court deems the Objections filed on this date. See Houston v. Lack, 487 U.S. 266, 276 (1988). Here, the Court's consideration of Gaither's timely-filed Objections would prevent manifest injustice. Hutchinson, 994 F.2d at 1081. Accordingly, the Court will GRANT Rule 59(e) relief to Gaither to the extent it will review his Objections and conduct a de novo review of those portions of the Report and Recommendation to which Gaither objects. Nevertheless, as discussed below, Gaither's Objections fail to alter the conclusion that Gaither's § 2254 Petition is procedurally defaulted and lacks merit. The Court will OVERULE Gaither's Objections.


         "The magistrate [judge] makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." Estrada v. Witkowski, 816 F.Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." Thomas v. Am, 474 U.S. 140, 147 (1985).


         In his first objection, Gaither suggests that he "has not... procedurally defaulted his claims" because "there is a miscalculation of the Virginia habeas statute of limitations and the interest of justice would be better served by addressing the merits of Gaither's § 2254 Petition." (Objs. 5.)[1] Gaither believes that the Supreme Court of Virginia improperly dismissed his petition as untimely filed under Virginia Code § 8.01-654(A)(2). (Id. at 4.) In the Amended Report and Recommendation, the Magistrate Judge explained the following:

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).
"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l).[2] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citations omitted). Absent a showing of cause and prejudice or his actual innocence, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).
Here, the Supreme Court of Virginia found that Gaither's claim was untimely under section 8.01-654(A)(2) of the Virginia Code. Gaither v. Zook, No. 151522, at 1 (Va. Dec. 2, 2015). Virginia's statute of limitations for habeas actions is an adequate and independent procedural rule when so applied. See George v. Angelone, 100 F.3d 353, 363-64 (4th Cir. 1996); Sparrow v. Dir. Dep't of Con.,439 F.Supp.2d 584, 587-88 (E.D. Va. 2006). Gaither offers no ...

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