United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Tabb, a Virginia inmate proceeding pro se, brings
this petition pursuant to 28 U.S.C. § 2254 ("§
2254 Petition, " ECF No. 7) challenging his conviction
in the Circuit Court for the County of Charles City, Virginia
("Circuit Court"). Respondent has moved to dismiss,
arguing that Tabb has failed to exhaust his state court
remedies as to all of his claims. For the reasons stated
below, the Motion to Dismiss (ECF No. 15) will be granted,
and Tabb's § 2254 Petition will be dismissed without
prejudice to Tabb's right to refile once he has exhausted
his state court remedies.
March 15, 2016, a jury convicted Tabb of one count of
malicious wounding. (Br. Supp. Mot. Dismiss 1, ECF No. 17;
see § 2254 Pet. I.) The Circuit Court entered
final judgment on June 17, 2016 and sentenced Tabb to five
years of incarceration. (Br. Supp. Mot. Dismiss 1.) Tabb did
not appeal. (Id.; § 2254 Pet. 2.)
Court received Tabb's initial § 2254 Petition on
December 21, 2016. (ECF No. 1.) By Memorandum Order entered
on January 19, 2017, the Court directed Tabb to complete the
standardized form for filing a § 2254 petition. (ECF No.
2, at 1.) On March 9, 2017, the Court received Tabb's
§ 2254 Petition, in which Tabb raises various claims of
ineffective assistance of counsel. (§ 2254 Pet. 5-8.) In
his § 2254 Petition, Tabb indicates that he did not
exhaust his state remedies because he was unable to obtain a
state habeas form and because he was unaware of his state
remedies until he filed the instant § 2254 Petition.
(Id. at 5, 7, 9-10.)
EXHAUSTION AND PROCEDURAL DEFAULT
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, 4 04 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
0'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." 2 8 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 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, 377 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) .
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., 4 39 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.
the claims raised by Tabb have not been raised before the
Supreme Court of Virginia. Tabb 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). Tabb fails to demonstrate that any exceptional
circumstances warrant the consideration of his habeas
petition at this time. In sum, Tabb's claims are clearly
foregoing reasons, Respondent's Motion to Dismiss (ECF
No. 15) will be granted. Tabb's § 2254 Petition will
be dismissed without prejudice. Tabb may refile once he has
exhausted his state court remedies. A certificate of
appealability will be denied.
Clerk is directed to send a copy of this Memorandum Opinion
to Tabb and ...