United States District Court, E.D. Virginia, Richmond Division
RICHARD A. NEWTON, Petitioner,
HAROLD W. CLARKE, Respondent.
Hannah Lauck United States District Judge.
a Virginia inmate proceeding pro se, submitted a 28
U.S.C. § 2254 petition. (ECF No. 6.) 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). 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 or she 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 [or she] has
the right under the law of the State to raise, by any
available procedure, the question presented." 28 U.S.C.
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 [or her] 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, Zll 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, 995 (4th Cir. 1994).
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 § 8.01-654(A)(1)
(2007). "Whichever route the inmate chooses to follow,
it is clear that [the inmate] ultimately must present his [or
her 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.
indicates that he has filed a petition for appeal of the
denial of his state habeas petition in the Supreme Court of
Virginia and that petition is currently pending. (§ 2254
Pet. 6.) The Court's review of the Supreme Court of
Virginia's case management system indicates that
Petitioner's petition for appeal was filed on March 8,
2017. Thus, the action is clearly pending before
the Supreme Court of Virginia and Petitioner has not received
a ruling from that court on his claims. See Sparrow,
439 F.Supp.2d at 587. Thus, Petitioner's claims are
by Memorandum Order entered on March 22, 2017, the Court
directed Petitioner, within eleven (11) days of the date of
entry thereof, to show cause as to why his § 2254
petition should not be dismissed for lack of exhaustion. The
Court explained that a failure to do so would result in the
dismissal of Petitioner's § 2254 petition without
prejudice to re-file after Petitioner has exhausted his state
court remedies for all of his claims.
than eleven days have elapsed and Petitioner has failed to
comply with the Court's directives or otherwise respond
to the Court's March 22, 2017 Memorandum Order.
Accordingly, the action will be DISMISSED WITHOUT PREJUDICE.
appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate
of appealability 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. Estelle,
463 U.S. 880, 893 & n.4 (1983)). No law or evidence
suggests that Petitioner is entitled to farther consideration
in this matter. A certificate of appealability will be
appropriate Order shall accompany this Memorandum Opinion.
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