Peyton v. Commonwealth of Virginia
Filing
9
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 4/13/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TONY LEE PEYTON,
Petitioner,
v.
Civil Action No. 3:11CV535
COMMONWEALTH OF VIRGINIA,
Respondent.
MEMORANDUM OPINION
Tony Lee Peyton, a Virginia inmate proceedingpro se, filed this petition for a writ of
habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition"). Peyton asserts entitlementto relief
upon the following grounds:
Claim 1
The prosecution used perjured testimony.
Claim 2
Petitioner is actually innocent.
Claim 3
Insufficient evidence existed to convict Petitioner.
Claim 4
Petitioner did not receive the effective assistance of counsel:
(a)
(b)
Counsel failed to pursue an appeal to the Supreme Court of
Virginia.
Counsel did not adequately represent Petitioner at trial.
Respondent has moved to dismiss on the grounds that Peyton has failed to exhaust his available
state court remedies. Peyton has responded. The matter is ripe for disposition.
I. Pertinent Procedural History
A jury in the Circuit Court for Fauquier County ("the Circuit Court") convicted Peyton of
attempted abduction with intent to defile. On June 8,2010, the Circuit Court entered final
judgment in Peyton's case, wherein it sentenced him to a five-year term of incarceration.
Peyton appealed. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), in the Court of Appeals of Virginia and a motion to withdraw. On January 10,2011, the
Court of Appeals of Virginia granted counsel's motion to withdraw and deniedthe petition for
appeal.
Peyton pursued a petition for appeal to the Supreme Court of Virginia. On May 4,2011,
the Supreme Court of Virginia dismissed Peyton's petition for appeal on the ground that he had
failed to file his petition for appeal in a timely manner. On June 16, 2011, the Supreme Court of
Virginia denied Peyton's petition for rehearing.
Peyton has not filed a petition for a writ of habeas corpus with Virginia courts.
II. Exhaustion
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) (quotingPreiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of
the exhaustion is "to give the State an initial opportunity to pass upon and correct alleged
violations of its prisoners' federal rights." Picardv. 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 offeredthe state courts an
adequate opportunity to address the constitutional claims advanced on federal habeas. "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." Baldwin v. Reese, 541
U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)).
Here, Peyton has not compliedwith the first aspect of exhaustion. Peyton may still
present his claims to the Virginia courts by filing a petition for a writ of habeas corpus. If Peyton
acts promptly, he may still file such petition with the Virginia courts.1 Accordingly,
Respondent's Motion to Dismiss (Docket No. 5) will be granted. The action will be dismissed
without prejudice so that Peyton may exhausthis state court remedies. A certificate of
appealability will be denied.
An appropriate order will accompanythis Memorandum Opinion.
Date:
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