United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
LAWRENCE R. LEONARD, UNITED STATES MAGISTRATE JUDGE
the Court is a Petition and Amended Petition for a Writ of
Habeas Corpus filed by pro se Petitioner Joshua
Paternoster-Cozart ("Petitioner") pursuant to 28
U.S.C. § 2254. ECF Nos. 1 and 6. The District Court
previously dismissed Petitioner's action on the grounds
that he failed to exhaust his state remedies. ECF No. 10.
Petitioner appealed to the Fourth Circuit, which vacated the
Judgment on the grounds that the District Court's
disposition by Dismissal Order was "recommended by"
the undersigned Magistrate Judge ("the
undersigned"), and thus the parties were not given the
opportunity to object pursuant to 28 U.S.C. §
636(b)(1)(C). ECF No. 16. Following the issuance of the
mandate, the matter was remanded to the District Court, and
subsequently re-referred by the District Judge to the
undersigned for further proceedings. ECF No. 19.
Amended Petition, Petitioner alleged that his constitutional
rights were violated in connection with his November 7, 2016
conviction in the York County General District Court for
Shoplifting, Under $200. ECF No. 6 at 1. Petitioner was
sentenced to serve twelve (12) months in prison. Id.
Section 2254 allows a prisoner held in state custody to
challenge his detention on the ground that his custody
violates the "Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). A state
prisoner, however, must exhaust his available state remedies
or demonstrate the absence or ineffectiveness of such
remedies before petitioning for federal habeas relief in
order to give "state courts the first opportunity to
consider alleged constitutional errors occurring in a state
prisoner's trial and sentencing." Breard v.
Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Importantly,
"[t]he burden of proving that a claim is exhausted lies
with the habeas petitioner." Id. at 618. The
exhaustion requirement is satisfied if the prisoner seeks
review of his claim in the highest state court with
jurisdiction to consider it through either direct appeal or
post-conviction proceedings, see O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999), and the
"essential legal theories and factual allegations
advanced in the federal court [are] the same as those
advanced at least once to the highest state court, "
Pruett v. Thompson, 771 F.Supp. 1428, 1436 (E.D. Va.
1991), aff'd, 996 F.2d 1560 (4th Cir. 1993).
appears from the record that Petitioner has circumvented
Virginia's state courts by failing to present his claims
to the Virginia Supreme Court, and, therefore, he has not
exhausted his state remedies. This he may not do. In his
Amended Petition, Petitioner stated that he appealed his
conviction, but withdrew his Petition for Appeal on January
6, 2017. ECF No. 6 at 2. Petitioner also sought further
review by a higher state court in a collateral proceeding,
id. at 3 (responding "Yes" to the question
of "Other than the direct appeals listed above, have you
previously filed any other petitions, applications, or
motions concerning this judgment of conviction in any state
court?"), when he petitioned the York County Circuit
Court for a Writ of Habeas Corpus on January 26, 2017.
Petitioner said that the "Petition for proceeding in
civil case without payment of fees or costs was denied and
petition was returned unfiled." Id. However,
the documents Petitioner included from the Circuit Court show
that the court did not deny his state habeas petition, but
denied his petition to proceed in a civil case without
payment of fees or costs. Id. at 18. Since
Petitioner never paid the fees or costs required to file a
civil case, his state habeas petition was never filed in the
gaining access to the federal courts on his habeas petition,
Petitioner must present his claims to the state's highest
court. In Virginia, that court is the Supreme Court of
Virginia. As noted, the purpose of the exhaustion doctrine
is, "to give the state courts a full and fair
opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts . . .
." O 'Sullivan, 526 U.S. at 845.
Accordingly, "[the petitioner] must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process." Id. By
withdrawing his Petition for Appeal to the Supreme Court of
Virginia and never properly filing his state habeas petition,
Petitioner did not give the state courts a full and fair
opportunity to resolve his claims. Therefore, in light of
Petitioner's failure to prove that his claim is
exhausted, the undersigned RECOMMENDS that
the Petition and Amended Petition, ECF Nos. 1 and 6, be
DENIED and DISMISSED WITHOUT
receiving a copy of this Report and Recommendation,
Petitioner is notified that:
1. Any party may serve on the other party and file with the
Clerk of this Court specific written objections to the above
findings and recommendations within fourteen days from the
date this Report and Recommendation is forwarded to the
objecting party, see 28 U.S.C. § 636(b)(1)(C)
and Federal Rule of Civil Procedure 72(b), computed pursuant
to Federal Rule of Civil Procedure Rule 6(a). A party may
respond to another party's specific written objections
within fourteen days after being served with a copy thereof.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
2. A United States District Judge shall make a de
novo determination of those portions of this Report and
Recommendation or specified findings or recommendations to
which objection is made. The parties are further notified
that failure to file timely specific written objections to
the above findings and recommendations will result in a
waiver of the right to appeal from a judgment of this Court
based on such findings and recommendations. Thomas v.
Am, 474 U.S. 140 (1985); Carr v. Hutto, 737
F.2d 433 (4th Cir. 1984), cert, denied, 474 U.S.
1019 (1985); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984), cert, denied, 467 U.S. 1208 (1984).
Clerk is DIRECTED to forward a copy of this Report and
Recommendation to Petitioner and to the Respondents.
 It appears from the Court's docket
that, inasmuch as Petitioner has registered with the Court a
change of address, see docket entry for 1/24/18, Petitioner
may no longer be "in custody" as required for the
Court to consider his habeas petition under 28 U.S.C. §
2254. "The 'in custody' requirement is
jurisdictional; if a habeas petitioner is not 'in
custody' for the conviction or the sentence he is
challenging, then the petition must be dismissed for lack of
subject matter jurisdiction." Allison v.
Clarke, No. 2:15-cv-144, 2016 WL 4582080, at *2 (E.D.