United States District Court, W.D. Virginia, Roanoke Division
TIMOTHY L. GARLAND, Petitioner,
v.
WARDEN, Respondent.
MEMORANDUM OPINION
Hon.
Jackson L. Kiser, Senior United States District Judge
Petitioner
Timothy L. Garland, a Virginia inmate proceeding pro se,
filed this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging a disciplinary proceeding
that resulted in a loss of earned good-conduct time and a
sizeable restitution order. The petition is presently before
me on the respondent's motion to dismiss, Garland's
response thereto, and his motion for an evidentiary hearing.
For the reasons set forth below, I will summarily dismiss
Garland's petition without prejudice to allow him to
pursue his pending state court habeas action and dismiss the
parties' motions as moot.
I.
Garland
is in the custody of the Virginia Department of Corrections
("VDOC"), serving a life sentence imposed in 1985.
On August 14, 2015, at Dillwyn Correctional Center
("Dillwyn"), Garland was served with a Disciplinary
Offense Report ("DOR"), charging him with being
under the influence of unprescribed drugs. According to the
DOR, on August 2, 2015, officers found Garland in the Day
Room area, slumped in a chair and unresponsive. (Resp't
Exhibits 20-22, [ECF No. 20-2]). In the medical unit, Garland
kept going in and out of consciousness and seemed to be
"hallucinating," because he said, "He wanted
everyone to see" and "To bring us all
together." (Id. at 22.) A staff member asked
Garland if he had "taken, smoked or dr[u]nk
anything," and Garland said he was "having a
'bad reaction,' but would not say what he was
reacting to." (id.) He was transported to the
hospital for tests. During a search of Garland's
clothing, in the right jean pocket, an officer found
"one folded white paper sealed with tape that contained
a green and brown substance inside." (Id.) When
an investigator interviewed Garland on August 4, 2015, he
"admitted he smoked spice." (Id.) The DOR
concluded, "The Investigation Office reviewed all of the
observations presented, as well as Rapid Eye, and determined
that the offender's actions were consistent with a person
who was under the influence of some type of unauthorized
substance or drug." (Id.) Garland denies taking
unprescribed drugs and blames his symptoms on August 2, 2015,
on a fall that caused him a concussion.
The
disciplinary hearing was scheduled for August 20, 2015.
(Id. at 20.) Garland alleges that he was not
provided with forms to request witnesses and documentary
evidence until August 19, 2015. He claims that he returned
the form that day, seeking "toxicology results of urine
and blood tests, and video tape." (Pet. Ex. A [ECF No.
24-1]). On August 21, 2015, the hearing officer denied
Garland's requested evidence, because he had not returned
the form within 48 hours before the scheduled hearing.
Ultimately,
it appears from documents in the record that the hearing was
conducted on February 4, 2016. (See Pet. Ex. C [ECF No. 1].)
The hearing officer found Garland guilty of the charged
offense because the reporting officer's description of
Garland's actions was consistent with those of a person
under the influence of a drug or other unknown substance.
(Id.) Garland's penalty was 30 days of
disciplinary segregation, loss of 120 days of
"SGT," and an order for him to pay restitution in
the amount of $6, 963. These findings and penalties were
apparently approved after an institutional review on February
8, 2016.[1]At some point after the disciplinary
hearing, Garland was transferred to Sussex I State Prison.
In
January of 2017, the Sussex County Circuit Court received a
letter from Garland, asking about the status of a habeas
corpus petition he had sent to the court in the fall of 2016.
By letter dated January 25, 2017, the clerk of the Circuit
Court advised Garland that the court had received paperwork
from him in September of 2016, but had not yet received the
$34 filing fee or a copy of the pleading to be served on the
Attorney General ("AG"). Garland responded by
mailing the Circuit Court his application to proceed in
forma pauperis. By letter dated February 23, 2017,
the clerk advised Garland that the incomplete financial
information he had offered in support of his application
demonstrated that he did not qualify to proceed in forma
pauperis. On March 9, 2017, the Circuit Court mailed
Garland a copy of its order denying his application to
proceed in forma pauperis. The accompanying letter
again advised him that if he wanted to proceed with his
habeas case, he needed to pay the $34 filing fee and to
provide the court with a copy of the petition to be served on
the AG. The copy of Garland's petition for a writ of
habeas corpus in the Circuit Court record is stamped as
received on April 4, 2017. Circuit Court records show this
petition as is still pending and has not been decided on the
merits.
On
March 30, 2017, Garland signed and dated a Notice of Appeal
from the Circuit Court's order denying his application to
proceed in forma pauperis. He mailed this notice to
the Court of Appeals of Virginia, Which issued an order,
stating that it did not have jurisdiction over the appeal,
and transferring the appeal to the Supreme Court of Virginia.
On April 26, 2017, the Supreme Court of Virginia issued an
order granting Garland until June 8, 2017, to file his
appeal. On June 5, 2017, he filed his petition for appeal,
asking the Supreme Court of Virginia to reverse the Circuit
Court's order denying his application to proceed in
forma pauperis with his habeas corpus petition. In
November of 2017, Garland also filed a "motion for a
prohibitory injunction," seeking a court order to cease
the garnishment of his prison wages toward satisfaction of
the restitution imposed on him in February of 2015. On
January 11, 2017, the Supreme Court of Virginia decided that
no reversible error had been committed and refused
Garland's petition for appeal of the Circuit Court's
denial of in forma pauperis. The Court also denied
his separate motion for a prohibitory injunction without
further comment.
Garland
filed his § 2254 petition, unsigned, with a cover letter
dated June 15, 2018.[2] The court required him to submit a signed
copy of his petition, which he did. Liberally construed,
[3] his
petition asserts that he was not provided the "Right to
Request Witness and Documentary Evidence" form in time
to request such evidence for the disciplinary hearing, in
violation of his due process rights. The respondent has filed
a motion to dismiss, arguing that Garland's habeas claims
are untimely filed and procedurally defaulted. Garland has
responded, making the matter ripe for
disposition.[4]
II.
"[A]
federal court may not grant a writ of habeas corpus to a
petitioner in state custody unless the petitioner has first
exhausted his state remedies by presenting his claims to the
highest state court." Baker v. Corcoran, 220
F.3d 276, 288 (4th Cir. 2000).[5] Absent a valid excuse, a state
prisoner "must have fairly presented to the state courts
the substance of his federal habeas corpus claim."
Anderson v. Harless, 459 U.S. 4, 6 (1982).
Ultimately, exhaustion requires the petitioner to present his
claims to the highest state court with jurisdiction to
consider them and receive a ruling. O'Sullivan v.
Boerckel. 526 U.S. 838, 845 (1999). A petitioner has the
burden to prove that he exhausted state court remedies as to
each of his federal habeas claims. Breard v. Pruett,
134 F.3d 615, 619 (4th Cir. 1998). If a § 2254
petitioner still has available state court proceedings in
which he can litigate his habeas claims, a federal court
should dismiss his § 2254 petition without prejudice to
allow him to exhaust those state court remedies. See
Slayton v. Smith, 404 U.S. 53, 54(1971).
The
evidence in the records indicates that Garland has not yet
exhausted available state court remedies regarding his due
process claims as required under § 2254(b). Although he
has filed a state habeas petition in the Circuit Court, he
has not yet completed the required steps to have his claims
adjudicated there. The Circuit Court clerk has advised
Garland repeatedly that to proceed with his habeas action, he
needs to pay the $34 filing fee. Garland has not yet done so.
Thus, he has not yet offered the Circuit Court an adequate
opportunity to address the constitutional claims advanced in
his federal habeas petition, and those claims are still
pending. Garland's petition for appeal to the Supreme
Court of Virginia addressed only the Circuit Court's
denial of his application to proceed in forma
pauperis. Thus, Garland has not "fairly presented
to the state courts the substance of his federal habeas
corpus claim[s]." Anderson, 459 U.S. at 6.
Because
Garland's habeas action is still pending in the Circuit
Court, he retains the opportunity to pay the filing fee and
proceed with the case to receive that court's ruling on
the merits of his claims.[6] Moreover, once the Circuit Court
addresses the claims in his petition, if he is dissatisfied
with the decision, he may then pursue an appeal to the
Supreme Court of Virginia. See Va. Code Ann. §§
8.01-654(A)(1), 17.1-406(B).
Because
the state courts have not yet had a full opportunity to
address Garland's habeas claims on the merits, and state
court habeas corpus and habeas appeal remedies remain
available to him, he has not yet fulfilled the exhaustion
requirement in 28 U.S.C. § 2254(b). For this reason, I
must dismiss his § 2254 petition without prejudice to
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