United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
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.)
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))).
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.
STANDARD OF REVIEW FOR REPORT AND
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).
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.) 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. §
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). 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,
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 ...