Kirby v. Dotson

Filing 8

FINAL ORDER. The Court ORDERS that Kirby's 1 Petition is DISMISSED WITHOUT PREJUDICE to allow Kirby to proceed with his claims in state court. A certificate of appealability is DENIED. Petitioner is ADVISED that he may seek a certificate from the United States Court of Appeals for the Fourth Circuit by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510 within thirty (30) days.Signed by Chief District Judge Mark S. Davis on 3/10/2025. Copies mailed 3/10/2025. (jmey)

UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

LEONARD KIRBY,

#1104567,
Petitioner,
ACTION

V.

NO.

2:24cv540

CHADWICK DOTSON,

Director of the Virginia
Department of Corrections,
Respondent.

FINAL

Petitioner Leonard Kirby

ORDER

("Kirby"),

a Virginia inmate,

filed

a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§

2254

on September 4,

Circuit Court

1;

Commonwealth v.

01,

CR23M00720-01-02

to

a

Kirby,
(Va.

United

Cir.

States

provisions of 28 U.S.C.
Rules

challenging his convictions

for Chesterfield County in July 2024.

at

referred

2024,

Nos.

CR23F00719-01-02,

Ct.

Oct.

3,

Magistrate

§ 636(b)(1)(B)

of the United States District

2024).

Judge

ECF

in the
No.

1,

CR23F01274-

The

matter

pursuant

to

was

the

and (C) and Rule 72 of the

Court

for the Eastern District

of Virginia for report and recommendation.
At

the

time

Kirby

signed

sentencing on his convictions.
7,

2024,

his

petition,

ECF No.

1,

at

he
1,

7.

was

awaiting

On November

the Court entered a show cause order directing Kirby to

show cause why his petition should not be dismissed pursuant to 28
U.S.C.

§

2254(b)(1)(A)

without

prejudice

to

Kirby

refiling

his

ECF

No.

6.

the

online

claim in this Court after proceeding in state court.
Kirby

did

not

Virginia

respond

courts

to

the

information

case

A

order.

review

reflects

of

that

following

sentencing, Kirby appealed his convictions to the Court of Appeals
of Virginia on January 8,
court.

See

Virginia

2025,

Courts

courts.state.va.us/cav-public
ACMS-CAV";

and his appeal is pending in that

Case

Information,

(last visited Mar.

then select "Appellant/Petitioner

Leonard"); Kirby v.

Commonwealth,

No.

004425

https://eapps.
4,

2025)

(select

and search "Kirby,

(Va. Ct. App. Jan.

8,

2025) .

The

report

recommends
prejudice

that
to

and

recommendation,

Kirby's

Kirby's

federal

refiling his

filed

petition

be

federal

proceeded in the Virginia state courts.

January

15,

dismissed

without

petition after
ECF

No.

7.

2025,

he

has

Each party

was advised of the right to file written objections to the findings
and recommendation made by the Magistrate Judge.

Id.

at

2-3.

No

objection has been filed.

The Court, having reviewed the record,
approve the
and

does hereby adopt and

findings and recommendations set

recommendation.

The

Court,

therefore,

2

forth in the report
ORDERS

that

Kirby's

petition is DISMISSED WITHOUT PREJUDICE to allow Kirby to proceed
with his

claims

in

state

court.

Kirby has failed to demonstrate "a substantial showing of the
denial

of

declines
Rule

a

to

22(b)

Miller-El

V.

constitutional

issue

any

of

Federal

the

Cockrell,

right.

and,

certificate

537

Rules
U.S.

therefore,

the

Court

of

appealability pursuant

of

Appellate

322,

335-36

Procedure.

to
See

(2003).

Kirby is ADVISED that because a certificate of appealability
is denied by this Court,

he may seek a certificate from the United

States Court of Appeals for the Fourth Circuit.

Fed.

22(b);

11(a).

Rules Gov.

intends

to

Circuit,

he must

this

Final

seek

§ 2254 Cases in U.S.

a
do

Order.

written

notice

District

Court,

certificate

of

Dist.

Cts.

appealability

so within thirty

(30)

days

from

R.

App.

P.

If Kirby
the

Fourth

from the date of

Kirby may seek such a certificate by filing a

of

appeal

United

with

the

States

Clerk

Courthouse,

Norfolk, Virginia 23510.

3

of

the
600

United
Granby

States

Street,

Service shall be made upon respondent in accordance with the
Agreement on Acceptance of

Service.

A copy

of

this

Final

Order

shall also be sent to Kirby.

Mark S. Davis

Chief Judge
Mark

S.

Davis

Chief United States District Judge

Norfolk,

March

Virginia

lO

, 2025

4