United States District Court, E.D. Virginia
Hannah Lauck United States District Judge.
a Virginia inmate proceeding pro se, submitted a 28
U.S.C. § 2254 petition. (ECF No. 10.) 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, HI 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.
Memorandum Order entered on August 8, 2017, the Court mailed
Petitioner the standardized forms for filing a 28 U.S.C.
§ 2254 petition and directed him to complete and return
the forms. (ECF No. 2.) On August 23, 2017, the Court
received from Petitioner the standardized forms for filing a
28 U.S.C. § 2254 petition. (ECF No. 3.) However, on the
submitted forms, Petitioner left blank the question inquiring
whether he had "filed any other petitions, applications,
or motions concerning [Petitioner's] judgment of
conviction in any state court?" (See Id. at 4.)
by Memorandum Order entered on October 13, 2017, the Court
directed Petitioner, within twenty (20) days of the date of
entry thereof, to re-complete the standardized forms for
filing a 28 U.S.C. § 2254 petition and to show cause as
to why his § 2254 petition should not be dismissed for
lack of exhaustion. (ECF No. 8, at 1-2.) 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. (Id. at 2.)
November 1, 2017, the Court received back from Petitioner the
standardized forms for filing a 28 U.S.C. § 2254
petition ("§ 2254 Petition, " ECF No. 10.) In
his § 2254 Petition, Petitioner acknowledges he has not
presented his claims to the Supreme Court of Virginia.
(See id. at 6.) Rather, Petitioner contends
that he appealed his conviction to the Southampton County
Circuit Court, (id. at 3), and submitted another
"petition, application, or
motion" to the Southampton Circuit Court.
(Id. at 4.) However, when asked, "[d]id you
appeal to the highest state court having jurisdiction over
the action taken on your petition, application, or
motion?" Petitioner checked the "No" boxes.
(Id. at 6.) Further, in response to the form's
prompt, "[i]f you did not appeal to the highest state
court having jurisdiction, explain why you did not[, ]"
Petitioner stated "[b]ecause I never received anything
back from the Circuit Court Clerk regarding my Motion for
Direct Appeal." (Id.) Moreover, a review of the
Supreme Court of Virginia's case management system
indicates that Petitioner's only appearance before the
Supreme Court of Virginia was a criminal petition for appeal
that was refused on July 7, 2006.Therefore, it is apparent
that Petitioner has not submitted his habeas claims to the
Supreme Court of Virginia and thus, has not exhausted his
state court remedies. Accordingly, the action will be
DISMISSED WITHOUT PREJUDICE. A certificate of appealability
will be DENIED.
has also submitted a "Motion for Direct Appeal/Writ of
Certiorari" wherein he requests relief from a sentence
entered against him by the Southampton Circuit Court on May
30, 2017. (ECF No. 9, at 1; ECF No. 9-1, at 1-3.) Because
Petitioner is attacking his conviction in the Southampton
Circuit Court, as explained above, he is required to exhaust
his state court remedies before this Court may consider a
petition pursuant to 28 U.S.C. § 2254. Therefore,
Petitioner's "Motion for Direct Appeal/Writ of
Certiorari" (ECF No. 9) will be DENIED.
appropriate Order shall accompany this Memorandum Opinion.
 Specifically, Petitioner has checked
the "Yes" box that asks if he has filed "any
other petitions, applications, or motions concerning
[Petitioner's] judgment of conviction in any state
court?" (§ 2254 Pet. 4.) However, in the section
that prompts Petitioner to identify the "Nature of the
Proceeding, " Petitioner states only "Denied."
(Id.) Moreover, the case numbers that Petitioner
includes are criminal numbers. (See id.) Therefore,
it is unclear to the Court what other "petition,
application, or motion" Petitioner has submitted
concerning his judgment of conviction. (Id.)
"Case Status and Information;" select "Supreme
Court of Virginia" from drop-down menu; follow
"ACMS-SCV" button; select
"Appellant/Petitioner;" select the "Both"
button under "Case Status;" type "Suiter,
Montroy" in the "Name" field and follow the
An 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, ...