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Hardy v. Clarke
United States District Court, E.D. Virginia, Richmond Division
June 21, 2017
VERNAL TIMOTHY HARDY, Petitioner,
HAROLD W. CLARKE, Respondent.
MEMORANDUM OPINION (ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING ACTION)
E. HUDSON UNITED STATES DISTRICT JUDGE.
Timothy Hardy, a Virginia inmate proceeding pro se,
filed this petition for habeas corpus under 28 U.S.C. §
2254 ("§ 2254 Petition, " ECF No. 1)
challenging his convictions in the Circuit Court for the
County of Loudoun, Virginia ("Circuit Court"). On
May 23, 2017, the Magistrate Judge issued a Report and
Recommendation wherein he recommended dismissing BurrelFs
§ 2254 Petition without prejudice because of Hardy's
failure to exhaust state court remedies. (ECF No. 22.) Hardy
has filed objections. (ECF No. 23.) For the reasons that
follow, Hardy's objections will be overruled, the Report
and Recommendation will be accepted and adopted, and the
action will be dismissed.
THE REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
A. Procedural History
On February 22, 2016, Hardy pled guilty in the Circuit Court
to one count of distribution of a Schedule One or Two
controlled substance, and one count of possession with intent
to distribute a Schedule One or Two Controlled Substance.
(ECF No. 18-2, at 1-6.) On June 1, 2016, the Circuit Court
entered judgment and sentenced Hardy to an aggregate sentence
often years of incarceration, with five years suspended. (ECF
No. 18-1, at 2-3.)
Hardy did not appeal. On August 12, 2016, he filed a pro
se letter asking for reconsideration of his sentence
based upon his background. (ECF No. 18-7, at 1-8.) On August
22, 2016, Hardy filed a second pro se letter
requesting reconsideration of his sentence. (ECF No. 18-8, at
1-12.) In this letter, Hardy described why he believes trial
counsel rendered ineffective assistance. (Id. at
1-4.) The Circuit Court did not consider these letters, as
they were ex parte communications with the Court.
(ECF No. 18-10, at 1; ECF No. 18-11, at 1.) On October 12,
2016, Hardy filed a pro se Motion for
Reconsideration, requesting reconsideration of his sentenced
based upon his "excellent disciplinary record"
while incarcerated. (ECF No. 18-9.) The Circuit Court denied
the Motion for Reconsideration on February 10,
On December 7, 2016, the Court received Hardy's §
2254 Petition. In his § 2254 Petition, Hardy vaguely
asserts that he received ineffective assistance from counsel
in connection with his guilty plea and sentencing, and he
complains about his plea. (§ 2254 Pet. 6-10.) He
acknowledges that he only filed a Motion for Reconsideration
of his sentence. (Id. at 6, 7-8.)
B. Exhaustion and Procedural Default
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. §
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 2017). "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.
Here, the claims raised by Hardy have not been raised before
the Supreme Court of Virginia. Hardy may still file a
petition for a writ of habeas corpus raising his present
claims with the state court. See Va. Code Ann.
§ 8.01-654(A)(2) (West 2017) (requiring that a state
habeas petition be filed within two years of final judgment
where no appeal is pursued). Hardy fails to demonstrate that
any exceptional circumstances warrant ...
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