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Hardy v. Clarke

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

June 21, 2017

HAROLD W. CLARKE, Respondent.



         Vernal 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 Magistrate Judge made the following findings and recommendation:

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.)[1]
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, 2017.[2]
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. § 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 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. ยง 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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