United States District Court, E.D. Virginia, Richmond Division
RODERICK C. YOUNG UNITED STATES MAGISTRATE JUDGE
Thornton, a Virginia state prisoner proceeding pro
se brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition," ECF No. 5)
challenging his conviction in the Circuit Court of the City
of Newport News, Virginia ("Circuit Court"). In his
§ 2254 Petition, Thornton argues that he is entitled to
relief based upon the following grounds:
Claim One: "The evidence was insufficient to prove
[Thornton] committed conspiracy because the evidence did not
establish an agreement between one or more [persons] prior to
the robbery." (§ 2254 Pet. 5.)
Claim Two: "The evidence was insufficient to establish
Thornton was one of the robber[s] and carjack[ers] of
Watson." (Id. at 17.)
Claim Three: "Attorney Joshua A. Goff worked by himself
and [was] never available for meeting[s] about appeals
process. Mr. Goff told me that everything at trial would be
[in] my appeal and 'he said he got it' when asked
what he would be filing. This [is] ineffective assistance of
counsel because not only did he not focus on some of the
issues that [were] never proven at trial, he misrepresented
when he said, 'everything would be covered.'"
(Id. at 17-18.)
moves lo dismiss the § 2254 Petition on the ground that
Thornton has failed to exhaust his state court remedies as to
all of his claims. Despite the provision of notice pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), Thornton has failed to respond. For the reasons stated
below, the Motion to Dismiss (ECF No. 11) will be GRANTED.
a bench trial, the Circuit Court convicted Thornton of
robbery, conspiracy to commit robbery, carjacking, and two
counts of use of a firearm in the commission of a felony.
(ECF No. 13-1, at 1-2.) The Circuit Court sentenced Thornton
to an active term of thirty years of incarceration.
(Id.) Thornton appealed, raising Claims One and Two
of the instant § 2254 Petition. (ECF No. 13-2, at 1.)
The Court of Appeals of Virginia denied his petition for
appeal finding sufficient evidence to sustain his
convictions. (Id. at 1-6.) The Supreme Court of
Virginia refused Thornton's subsequent petition for
appeal. (ECF No. 13-3, at 1.)
notes that there is no record of Thornton filing a state
habeas petition in the Circuit Court of the Supreme Court of
Virginia. Thornton has not contested this assertion. For the
reasons stated below, Thornton's § 2254 Petition
will be DISMISSED WITHOUT PREJUDICE for failure to exhaust
his state court remedies.
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, 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. §
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).
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); seealso Va. Code §
8.01-654(A)(1) (2019). "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 ...