Coleman v. Unknown

Filing 33

MEMORANDUM OPINION. Petitioner's case has already been dismissed, and a stay will not be entered. Petitioner has not demonstrated cause for failing to exhaust his claims and for filing an untimely request to do so. Accordingly, Petitioner's 32 Motion is DENIED. However, because the appeal period for the court's Final Order entered on March 4, 2025, ECF No. 30, continues to run, and because Petitioner's Motion was received during this appeal period the court will consider Pe titioner's Motion to contain a Notice of Appeal of the Final Order. The Clerk is DIRECTED to note the appeal on the docket. The court DECLINES to issue a certificate of appealability. The Clerk is DIRECTED to forward a copy of this Memorandum Order to Petitioner and counsel of record for the Respondent. Signed by District Judge Rebecca Beach Smith on 3/12/2025. Copies mailed 3/12/2025. (jmey)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

IRVIN E. COLEMAN, #1093469,
Petitioner,
Case No. 2:23-cv-676

V.

CHADWICK DOTSON, Director,

Virginia Department of Corrections,
Respondent.

MEMORANDUM ORDER

This

matter

requesting
exhausted
Amended

comes

stay
his

of

federal

state

Petition

before

for

a

certificate

of

dated February 18,
March 5,

2025.

Motion

DENIED.

is

Id.

Writ

or

on

Petitioner's

until

and

requesting

of

Habeas

ECF No. 32.

service

2025,

court

jurisdiction

remedies

(hereinafter "Motion").
no

the

Motion

Petitioner

has

of

his

No.

6,

"Nonsuit"

Corpus,

ECF

Petitioner's Motion included

mailing.^

See

id.

The Motion

is

but was not received by the court until

For the

reasons

listed herein.

Petitioner's

^

Under the prison mailbox rule, documents are considered
when delivered to prison authorities for mailing to the
court.
See Houston v. Lack, 487 U.S. 266, 276 (1988) .
Generally,
the date of filing is determined by reference to prison mailing
logs, see id., or by the date included on the certificate of
service or mailing, see United States v. Perry, 595 F. App'x 252,
filed

252 n.l (4th Cir. 2015); Wall v. Rasnick, 42 F.4th 214, 218 (4th
Cir. 2022).
Neither prison logs nor a certificate of mailing were
provided here.

I.

Petitioner's

received

by

defect.

ECF No.

initial

the

court
1.

Petition

on

December

On January 2,

On

July

12,

2024,

was

2023,

filed

subject

to

Dismiss) ,
16,

15

on August 12,

ECF

No.

11.

5 Answer,
ECF Nos.

2024.

Petitioner

(Memorandum) .

2024.

ECF No.

and Rule

ECF

No.

ordered the United

Judge

(30) days.

filed its Motion to Dismiss

October

Corpus

this matter was referred

2024,

the Magistrate

a Memorandum in Support,
to

Habeas

which corrected the defect.^

States to respond within thirty
States

21,

of

On March 21, 2024, Petitioner filed an Amended Petition

3.

for Writ of Habeas Corpus,
6.

Writ

Leonard for further proceedings.

to Magistrate Judge Lawerence R.
ECF No.

for

The United

as well
14

as

(Motion

responded on

or

about

20.

On January 24, 2025, Magistrate Judge Leonard issued a Report
and

("R&R")

Recommendation

recommended
Dismiss,

ECF

that

the

court

No.

14,

and

to

the

grant
deny

the

and

United

dismiss

Amended Petition for Writ of Habeas Corpus,
at

12.

ECF

court.

States'
with

ECF No.

to Grant his

2

Petition

On January

Petitioner's

timely.

29.

He

Motion

to

prejudice
6.

ECF No.

the

29

Magistrate Judge Leonard further recommended that the court

deny Petitioner's Motion for Default Judgment,

that

No.

ECF

No.

17,

ECF No.

for a Writ of Habeas Corpus,

2025,

Amended

Magistrate

Petition

28.
2

for

Judge
Writ

of

18, Motion

ECF No.

19,

and

Leonard determined
Habeas

Corpus

was

Motion

for

an

Evidentiary

ECF

Hearing,

Id.

at 14.

Id.

21.

at

12.

days of entry and mailing

Objections were due within fourteen (14)
of the R&R.

No.

No objections were filed.

More than five weeks later,

on March 4,

2024,

the court issued

a Final Order adopting and approving the Magistrate Judge's R&R in

Accordingly, the court granted the United States' Motion to

full.

denied and dismissed with prejudice the Amended Petition

Dismiss,
for

a

Writ

Motions

as

of

Habeas

listed

state

court

and

denied

ECF

No.

30

above.

dismissal was based,
his

Corpus,

in part,

remedies,

at

Petitioner's
While

2-3.

ECF No.

29 at

the

6,

the

decision was

also based on Petitioner's claims not being cognizable on
habeas review,

see

id.

court's

failure to exhaust

on Petitioner's

see

remaining

federal

at 7-11.

The following day, the court received and filed Petitioner's
instant

Motion.

submission

appeal

of

Petitioner

W

ECF No.

serves

the

as

32.3

a

letter

Magistrate

offers

the

2)

Conditionally,

of

Judge,

of

my

Nonsuit'

Lawrence

R.

Leonard.

tf

his

letter:

\\

reasons

within

stay

Petitioner states that his

'Notice

Hon

following

exhaust my state remedies
and

Therein,

my

the

for

state

federal

court within

jurisdiction

exhaustion of my state remedies has been completed.

ft

of

my
Id.

1)

To

90

days

until

the

Id.

3
As
previously
stated.
Petitioner's
Motion
is
dated
February 18, 2025, but the court did not receive it until March 5,
2025, and there is no certificate of service or mailing.
See supra
note 1 and accompanying text.
3

II.

R&R,

First,

to

the extent that Petitioner's Motion objects to the

it is

not

timely.

Objections to the Magistrate Judge's R&R

were due no later than February 1,

2025,

fourteen

days after

(14)

entry and mailing of

the R&R to Petitioner.

EOF

Petitioner

failed to

include a

service or mailing

regarding

the

determine

the

is

granted

instant
exact

the

of

rendering

the

Motion,

date of

benefit

February 18, 2025,

certificate

However,

filing.
the

of

see ECF No. 32,

date

No.

29

court
even

listed

14.

unable

if

on

at

to

Petitioner

the

Motion,

the Motion remains untimely as

an objection to the R&R.
Petitioner

Second,
Nonsuit.

Federal courts

Id.

r/

of

[]

construe requests to "nonsuit"

as

identifies

his

letter

as

\\

a

Notice

a voluntary dismissal under Federal Rule of Civil Procedure 41.
Morris

20,

GITSIT Sols.,

v.

(citing

2024)

dismissed,

and

LLC,

Petitioner's

cases) .

therefore,

2024 WL 4836475,

he

cannot

at *2

action

(E.D. Va. Nov.

has

already

been

dismiss

his

now voluntarily

habeas petition under Rule 41.
Third,

Petitioner
to

jurisdiction

//

motion

stay

for

requests

that

the

court

allow him to exhaust his

state

and

used

abeyance

is

often

court remedies.

where

presents both exhausted and unexhausted claims.
544

U.S.

269,

274-75

Petitioner's nine

(9)

(2005).

Such

is

not

the

Rhines

case

A

petitioner

a

v.

here.

claims were properly exhausted.
4

federal

stay

See

Weber,
None

of

ECF

No.

29

at

while

The

Part

III.B.

the

petitioner

allowing

the

district

exhausts

petitioner

to

court

all

avoid

limitations in federal court,

may

his
any

also

claims

stay

in

expiration

a

petition

state

court,

statute

of

of

and allowing the petitioner to avoid
However,

Id.

losing any federal review of his claims,

'granting

a stay effectively excuses a petitioner's failure to present his
claims first to the state courts,'
the

district

court

determines

which is
there

'only appropriate when

was

good

cause

for

the

petitioner's failure to exhaust his claims first in state court.
Sparks v. Clarke,

2015 WL 10457211,

at *3

(E.D. Va. Nov.

2016)

(citing Rhines,

544 U.S. 269) .

Va.

Mar.

Petitioner has

not

shown

good cause for failing to exhaust his state remedies.
29

at

review,

6,

and

see

id.

his

claims

at

7-11.

are

not

17, 2015),

(E.D.

report and recommendation adopted, 2016 WL 1054721
10,

n

cognizable

on

see

federal

ECF

No.

habeas

Ill.

Petitioner's case has already been dismissed, and a stay will
not

be

entered.

Petitioner has not demonstrated cause for failing

to exhaust his claims and for filing an untimely request to do so.
Accordingly,

Petitioner's Motion is DENIED.

However, because the appeal period for the court's Final Order
entered on March 4,

Petitioner's
court

will

Motion
consider

2025,

ECF No.

30,

was

received

during

this

Petitioner's

Motion

to

5

continues to run,

appeal
contain

and because

period.
a

Notice

the

of

Appeal

of

the

Final

appeal

on

the

docket.

The

Order.

Clerk

is

Nevertheless,

DIRECTED

having

to

failed

note

to

substantial showing of denial of a constitutional right,
reasons

stated

herein

and

in

the

Final

Order,

the

the

make

a

for the

court DECLINES

to issue a certificate of appealability.
The

Clerk

is

DIRECTED

to

forward a

copy of

this

Memorandum

Order to Petitioner and counsel of record for the Respondent.
IT

IS

SO

ORDERED.

Rebecca Beach Smith

Senior United States District Judge
REBECCA

SENIOR UNITED

March |'5^ , 2025

6

BEACH

STATES

SMITH

DISTRICT

JUDGE