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Thornton v. Newport News Circuit Court

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

March 29, 2019




         Michael 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:[1]

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.)

         Respondent 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.


         Following 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.)

         Respondent 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.


         A. Applicable Law

         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); 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 ...

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