Gould v. City of Ne et al

Filing 7

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Kelvin Gould. Signed by Magistrate Judge James E. Bradberry and filed on 12/16/09. Mailed to pro se with clerk's mailing certificate 12/16/09.(lwoo)

UNITED FOR THE

STATES

DISTRICT

COURT

EASTERN DISTRICT

OF VIRGINIA

Norfolk Division

KELVIN GOULD,

#0009214
Petitioner,

v.
CITY OF NEWPORT NEWS, JEFFREY TYONE C. COLE ROUNTREE, JOHNSON,

2:09CV571

ATTORNEY ATTORNEY

and ARTISHA K.

TODD,

Assistant

Commonwealth's Attorney,
Respondents.

MAGISTRATE

JUDGE'S REPORT AND RECOMMENDATION

This
corpus under 28

matter

was
§

initiated
2254.

by
The

petition
matter

for

writ

of

habeas
to the

U.S.C.

was

referred

undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C.
States

§

636(b)(1)(B)

and
the

(C),

and Rule 72 of the Rules of the United
District of Virginia.

District Court

for
I.

Eastern

STATEMENT OF THE

CASE

A.

Background

Petitioner

challenges

his

continued

incarceration

on

charges

of

inanimate
his

object
sexual 30,

sexual
or

penetration
parts. November

and
The 26,

knowingly
charges 2007,

and
have

intentionally
been pending filed a

exposing since

genital On

January

2007.

petitioner

petition dismissed
state

for

writ

of 28,

habeas 2008,

corpus due to

in the

this fact

Court, that

but

the petition was trial in

January
had

petitioner's

court

not

yet

occurred.

On

November

12,

2009,

petitioner

filed

a

second

habeas

petition
same

in

this

Court,
were

challenging
pending when

his
he

continued
filed the

incarceration
previous

on

the

charges

that

petition.

Pursuant still

to the Virginia Courts Case is now

information for

System,

the charges are 2010.

pending and trial By Order of

scheduled 1, 2009,

February

17,

December

petitioner was directed to show

cause why his petition should not be dismissed for failure to exhaust his
available responded, process state but court remedies. On December that he 15, 2009, not petitioner the

other

than

indicating

does

understand

for filing a petition,

he gave no valid reason

for not

filing his

claims
not

in the Supreme Court of Virginia.
exhausted, the Court has not

Since petitioner's claims have
required respondent to file an

been

answer.

II.

FINDINGS

OF

FACT AND

CONCLUSIONS

OF

LAW

A.

Standard of Review for State

Court Findings

The
provides that:

federal

statute

regarding

review

of

state

court

actions

An

application
of a

for

a
in

writ

of

habeas

corpus
to

on
the

behalf

person

custody

pursuant

judgment of a State court shall not be granted with respect to any claim that was adjudicated on the

merits

in

State of

court

proceedings

unless

the

adjudication
(1)

the

claim--

resulted in a decision that was contrary to,
clearly

or involved an unreasonable application of,

established
Supreme

Federal
of the

law,

as

determined
or

by

the

Court

United States;

(2) the

resulted in a evidence

decision in

that the

was based on an State court

unreasonable determination of the facts in light of
presented proceeding.

28

U.S.C.

§

2254(d)(2000). This standard,
1996

adopted
(AEDPA),

by

the

Antiterrorism
104-132, is

and

Effective

Death

Penalty Act of

Pub.L.No.

consistent with

the

Fourth
of

Circuit's
the new

interpretation
law. In Fields

of
v.

28

U.S.C.

§
49

2254(d)
F.3d

prior

to

the
Cir.

passage

Murray,

1024

(4th

1995) ,

the
to

court
a

held

that

a
of

review

of

a

state

court

finding,
habeas
See id.

which
court
at

is
to

entitled

presumption

correctness,

compels

the

accord a high measure of deference to the state

court.

1032-

33

(citing Rushen v.
591, 598

Spain,
As

464 U.S.

114,

120

(1983);

Sumner v. Mata,
459 U.S.

455
422

U.S.

(1982)).

stated in Marshall v.

Lonberaer,

(1983),
simply

"[t]his deference requires that a federal habeas court more than
disagree with the state it [] court before rejecting that the its factual court's 432.

determinations. findings

Instead, 'fair

must

conclude in the

state Id. at

lacked even
B.

support'

record."

Petitioner's Claims
are Not Subject to

are Not Exhausted and
Federal Review.

At

the

outset,

the

Court

finds

that

the

allegations

stated

herein

are

amenable

to

resolution to pursue.
must

in

a

state

habeas

action,

which claim

petitioner has chosen not
under § 2254,

In order to proceed with his
satisfy
that:

petitioner
Section 2254

the

statutory

exhaustion

requirements.

provides

(b) (1) on
judgment

An application of
of

for a writ of habeas corpus in custody
shall

behalf it

a
a

person
State

pursuant
not be

to

the

court

granted

unless
(A)

appears

that--
has exhausted the remedies

the

applicant

available
(B)(i) corrective (ii)

in

the

courts
is an or

of

the

State;
of

or
State

there

absence

available

process;

circumstances

exist

that

render

such

process

ineffective

to

protect

the

rights

of

the

applicant.

(c)

An

applicant the

shall

not

be

deemed in the

to

have of

exhausted

remedies

available

courts

the he

State, has the

within right

the

meaning the

of law

this of

section, State

if to

under

the

raise,

by

any

available

procedure,

the

question

presented.

28

U.S.C.

§§ 2254(b) (l)-(c) (2000) .
The Court finds that means exist within the state system

through which petitioner may address

and exhaust his

claims.

The Court

finds

no

evidence

in

the
the

record
to

which
the

suggests
Supreme

that

petitioner
Virginia,

has
the the

previously

presented

claims

Court

of

last step in petitioner's exhaustion of state remedies.

Accordingly,

Court finds that petitioner has not satisfied the exhaustion requirements
of § 2254. Since petitioner has not satisfied the statutory

requirements,
juncture.
Rodriguez,

the Court
Clayton
U.S. 475,

cannot
v.

consider
404

the merits of
U.S. 53, 54

the claim at

this
v.

See
411

Smith,

(1971);

Preiser

489
III.

(1993).
RECOMMENDATION

For

the

foregoing

reasons,

the

Court

recommends

that

petitioner's petition for writ of habeas corpus be DISMISSED.

Petitioner

has

failed

to

demonstrate right."

"a

substantial it is

showing

of

the

denial the

of

a

constitutional

Therefore,

recommended

that

Court

decline to issue any certificate of appealability pursuant to Rule 22(b)
of the Federal Rules of Appellate
123 S.Ct. 1029, 1039 (2003) .
IV. REVIEW PROCEDURE

Procedure.

See Miller-El v.

Cockrell,

By notified that 1.

copy

of

this to 28

Report U.S.C.

and §

Recommendation, 636(b)(1)(C): the

the

parties

are

pursuant

Any party may

serve upon

other party and file with

the

Clerk v/ithin

written

objections days

to

the the

foregoing date of

findings of

and this

recommendations report to the

fourteen

from

mailing

objecting party,
Civil Procedure,

computed pursuant
plus three days

to Rule

6(a)

of

the
6(d)

Federal
of said

Rules

of

permitted by Rule

rules.

See

28

U.S.C.
to

§

636 (b) (1) (C) (2000) ;
party's
thereof.

Fed. R. Civ. P.
within

72 (b) .
days

A

party

may

respond

another
a copy

objections

fourteen

after

being

served with

2. those portions
to which

A

district of this
is

judge

shall

make

a

de

novo or

determination

of

report

or

specified

findings

recommendations

objection

made.

The parties are objections result
on such

further notified that and recommendations from a
See

failure set of

to

file

timely will

to

the

findings right

forth this

above

in waiver of
findings

to appeal

judgment
Thomas

court based
474 U.S. 140

and

recommendations.

v.

Arn,

(1985);

Carr
727

v.

Hutto.
91

737
(4th

F.2d
Cir.

433

(4th

Cir.

1984);

United

States

v.

Schronce,

F.2d

1984).

Is/
James E. Bradberry

United States Magistrate Judge Norfolk,
December

Virginia
16. 2009

Clerk's Mailing Certificate

A copy of the foregoing Report was mailed this date to each of
the following: Kelvin Gould, #0009214, Regional
23707

pro Jail

se

Hampton Roads P.O. Box 7609
Portsmouth, VA

Fernando

Galindo,

Clerk

Deputy

Clerk

.Ver.

1 Co

, 2009