Jones v. Commonwealth of Virginia
Filing
37
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 8/26/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TEHGRAIN JAMAL JONES,
Petitioner,
v.
Civil Action No. 3:12CV230-HEH
COMMONWEALTH OF VIRGINIA,
Respondent.
MEMORANDUM OPINION
(Dismissing Without Prejudice 28 U.S.C. § 2254 Petition)
Tehgrain Jamal Jones, a Virginia state prisoner proceeding pro se and informa
pauperis, filed a petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his
convictions in the Circuit Court for the City of Norfolk ("Circuit Court"). Jones argues
entitlement to relief based on the following claims:1
Claim One:
"18.2-498.3 misrepresentation prohibited ... prosecutor
concealed witnesses statements. She presented a witness
statement as evidence which she falsified." (§ 2254 Pet. 6.)
Claim Two:
The prosecutor "induc[ed] another to commit perjuryand
give false testimony." (Id. at 7.)
Claim Three:
A witness committed perjury. (Id. at 9.)
Claim Four:
"The prosecutor concealed witnesses statements in violation
of'Brady.'" (Mat 11.)
The Court has corrected the capitalization in the quotations from Jones's submissions.
Respondent moves to dismiss the § 2254 Petition.2 Jones has replied. For the reasons
that follow, the action will be dismissed without prejudice so that Jones may exhaust his
remedies in state court.
I. PROCEDURAL HISTORY
Jones filed his § 2254 Petition with this Court on March 25, 2012, prior to his
sentencing in the Circuit Court. (§ 2254 Pet. 15.) On April 19, 2012, the Circuit Court
sentenced Jones to an active term of twenty-five years of incarceration for his convictions
of robbery, carjacking, two counts of conspiracy, and two counts of use of a firearm in
the commission of a felony. (See Br. Supp. Mot. Dismiss (ECF No. 32) 1.) On
December 6, 2012, the Court ofAppeals ofVirginia denied his appeal. (Id.) On May 6,
2013, the Supreme Court ofVirginia refused his petition for appeal.3 Jones filed no state
habeas petition following his conviction.
II. EXHAUSTION OF STATE REMEDIES
A.
General Principles
Before a state prisoner can bring a § 2254 petition in federal district court, the
prisoner must first have "exhausted the remedies available in the courts of the State." 28
U.S.C. § 2254(b)(1)(A). State exhaustion "'is rooted in considerations of federal-state
Respondent failed to provide any state court records as Jones's direct appeal was
pending when Respondent filed the Motion to Dismiss. Thus, the Court relies on the skeletal
record as presented by the parties and baseduponthe state courtcase management records
available on the internet.
See http://www.courts.state.va.us/courts/scv (select"Case Statusand Information;"
select"Supreme Court of Virginia" from drop-down menu; follow "ACMS-SCV" button; then
follow "Appellant/Petitioner;" thenselect radial button for "Both" Status, type "Jones,
Tehgrain," andthen follow "Search" button; then follow "130038" hyperlink).
comity,'" and in the congressional determination via federal habeas laws "that exhaustion
ofadequate state remedies will 'best serve the policies offederalism.'" Slavekv. Hinkle,
359 F. Supp. 2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475,
491-92 & n.10 (1973)). The purpose of exhaustion is "to give the State an initial
opportunity to pass upon and correct alleged violations ofits prisoners' federal rights."
Picardv. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted).
Exhaustion requires the petitioner to make a two-part showing. First, a petitioner
must utilize all available state remedies before he or she can apply for federal habeas
relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844^48 (1999). As to whether a
petitioner has exhausted 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 offered the state's
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)). "The burden of proving that a claim has been exhausted in
accordance with a 'state's chosen procedural scheme' lies with the petitioner." Greene v.
Johnson, No. 3:10cv53, 2012 WL 3555373, at *3 (E.D. Va. Aug. 16, 2012) (quoting
Mallory v. Smith, 27 F.3d 991, 994, 995 (4th Cir. 1994)). Jones fails to meet that burden.
B.
Jones's Lack of Exhaustion
Jones fails to satisfythe first aspect of exhaustion because he can still file a
petition for a writ ofhabeas corpus challenging his convictions.4 See Durkin v. Davis,
538 F.2d 1037, 1041 (4th Cir. 1976) ("Until the State has been accorded a fair
opportunity by any available procedure to consider the issue and afford aremedy if relief
is warranted, federal courts in habeas proceedings by state prisoners should stay their
hand." (internal quotation marks omitted) (citing Gilstrap v. Godwin, 517 F.2d 52, 53
(4th Cir. 1975))); Cardoza v. Dir. Va. Dep 't of Corn, No. 7:07cv00359, 2007 WL
2188137, at *1 (W.D. Va. July 27, 2007).
In response to the Motion to Dismiss, Jones contends that "his claims within the
habeas corpus petition were brought before the Norfolk City Circuit Court by way of
motion's [sic] and petition's [sic], the Virginia Court ofAppeals and Supreme Court of
Virginia. As well as the Virginia State Bar, and FBI." (Counter-Aff. (ECF No. 36) 1.)
However, Jones filed the instant federal petition prior to the entry offinal judgment for
his criminal conviction in the Circuit Court. Jones also filed his response to the Motion
to Dismiss before his direct criminal appeal had been resolved by the Virginia courts. To
the extent Jones contends he already raised the claims in state court, and therefore
Under Virginia law, "[a] habeas corpus petition attacking a criminal conviction or
sentence ... shall befiled within two yQaisfrom the date of final judgment in the trial court or
within one yearfrom either final disposition of the direct appeal in state court orthe time for
filing such appeal has expired, whichever is later." Va. Code Ann. §8.01-654(A)(2) (West
2013) (emphasis added). Jones fails to demonstrate thathe pursued habeas reliefwith the
Supreme Courtof Virginia following his conviction in the Circuit Court.
exhausted the claims, Jones fails to demonstrate thathe raised the claims in the
appropriate manner for exhaustion purposes under Virginia law. See Williams v. Smith,
3:11CV709-HEH, 2012 WL 6725618, at *2 (E.D. Va. Dec. 27, 2012). Jones provides no
information about when he purportedly raised his four claims or before which court. At
this juncture, Jones simply has not demonstrated that his Virginia remedies have been
completely blocked or rendered ineffective. Jones cannot utilize his disregard of
Virginia's procedural rules as a basis for excusing him from complying with the
exhaustion requirement. See id.
The Supreme Court "has long held that a state prisoner's federal habeas petition
should be dismissed ifthe prisoner has not exhausted available state remedies as to any of
his federal claims." Coleman v. Thompson, 501 U.S. 722, 731 (1991) (citations omitted).
That is the case here. In his § 2254 Petition, Jones raises four claims for relief. The
record fails to indicate that Jones has properly exhausted his state courtremedies with
respect to any ofthese claims. Accordingly, the Motion to Dismiss (ECF No. 30) will be
granted to the extent thatthe action will be dismissed without prejudice.
III.
PENDING MOTIONS
Jones also filed a Motion for Discovery (ECF No. 29) and a Motion to Vacate
(ECF No. 35). By Memorandum Order entered May 17, 2012, the Court warned Jones
that the Court would not consider any motion that failed to comply with the Local Rules
of this Court. See E.D. Va. Loc. Civ. R. 7(F)(1) (stating that all motions must be
accompanied by "a written brief setting forth a concise statement of the facts and
supporting reasons, along with a citation ofthe authorities upon which [Petitioner]
relies."). Jones's Motion for Discovery (ECF No. 29) fails to comply with Local Civil
Rule 7(F)(1) and will be denied.
In his Motion to Vacate, Jones raises no claim, but instead requests that his
conviction be overturned. As Jones identifies no procedural vehicle permitting the action
he seeks at this juncture and because Jones has failed to exhaust his state court remedies,
the Motion to Vacate (ECF No. 35)will be denied.
IV.
CONCLUSION
The Motion to Dismiss will be granted. Jones's §2254 Petition will be dismissed
without prejudice. An appeal may not be taken from the final order in a §2254
proceeding unless ajudge issues acertificate ofappealability ("COA"). 28 U.S.C. §
2253(c)(1)(A). ACOA will not issue unless aprisoner makes "a substantial showing of
the denial ofaconstitutional right." 28 U.S.C. §2253(c)(2). This requirement is
satisfied only when "reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner orthat the issues
presented were 'adequate to deserve encouragement toproceed further.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 &
n.4 (1983)). No law or evidence suggests that Jones is entitled to further consideration in
this matter. A COA will therefore be denied.
An appropriate Order shall accompany this Memorandum Opinion.
W
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Date: HpS.44 g*l *
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Richmond, Virginia
Virginia
/s/
HENRY E.HUDS
E.HUDSON
UNITED STATES DISTRICT JUDGE
UNITED STATES
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