Supreme-El v. McCabe

Filing 21

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/25/13. Copy sent: Yes(tdai, )

IN THE UNITED

FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

METAPHYZIC EL-ECTROMAGNETIC SUPREME-EL,

Petitioner,
v.

Civil Action No.

3:12CV523

SHERIFF ROBERT MCCABE,

Respondent.
MEMORANDUM OPINION

Metaphyzic El-Ectromagnetic Supreme-El,

a Virginia prisoner

proceeding pro se, filed a petition for a writ of habeas corpus
under 28

grounds

U.S.C.

that

remedies.

§ 2254.

Supreme-El

Respondent has moved to dismiss on the

has

Supreme-El has

failed

to

responded.

below, the Motion to Dismiss

(ECF No.

exhaust

of

Norfolk

seven-year

Metaphyzic

active

this

term

at 1-3
Court

(Va.

of

Cir.

received

challenging the above judgment.

1

In

his

§

2254

set forth

the Circuit Court of the

probation

imprisonment.

Supreme,

court

11) will be granted.

Supreme-El's

Electromagnetic

CR05001497-09,
2012,

revoked

state

For the reasons

By Order entered on April 4, 2012,

City

his

Nos.

Ct. Apr.

and

imposed

Commonwealth

CR05001497-07
4, 2012).

Supreme-El's

§

a

v.

through

On July 13,

2254

Petition

(§ 2254 Pet. (ECF No. 1) l.)1

Petition,

Supreme-El

also

mentions

additional state court charges.
(§ 2254 Pet. 1.)
Supreme-El
mentions a judgment for failing to pay child-support.
(Id. )
The six-month jail sentence for failing to pay child support was

Before

a

state

federal district
the

remedies

court,

available

§ 2254(b)(1)(A).

of

determination

federalism.'"

Va.

2005)

& n.10
an

via

state

in

the

federal

will

state

Preiser

of

§

2254

petition

in

first have "exhausted
the

State."

28

U.S.C.

v.

in
laws

the
"that

serve

359 F.

Supp.

Rodriguez,

congressional
exhaustion

of

policies

of

the

2d 473,

411

U.S.

479

475,

(E.D.

491-92

The purpose of exhaustion is "to give the State

270, 275 (1971)

remedies

a

^best

Hinkle,

opportunity

Exhaustion

and

habeas

to

violations of its prisoners'
404 U.S.

courts

comity,'"

remedies

(quoting

initial

bring

the prisoner must

Slavek v.

(1973)).

can

State exhaustion xx^is rooted in considerations

federal-state

adequate

prisoner

upon

and

federal rights."

correct

alleged

Picard v. Connor,

(internal quotation marks omitted).

requires
before

pass

he

a petitioner
or

she

can

to

utilize

apply

for

all

available

federal

habeas

entered by the Juvenile and Domestic Relations General District
for City of Norfolk.
(Br. Supp. Mot. Dismiss (ECF No. 13) 1 2.)
Thus, Supreme-El cannot challenge that judgment in this § 22 54
Petition.
See Rules Governing § 2254 Petitions in the U.S.
District Courts, Rule 2 (e) ("A petitioner who seeks relief from
judgments of more than one state court must file a separate
petition covering the judgment or judgments of each court.").
Additionally, Supreme-El mentions then-pending
in the Circuit Court of the City of Norfolk.

criminal charges
(§ 2254 Pet. 1.)

The Court's conclusion that Supreme-El failed to exhaust
relevant state court remedies applies with equal force to
pending criminal charges.
2

his
the

relief.

See

(1999).
state

0'Sullivan

v.

Boerckel,

526

U.S.

838,

847-48

As to whether a petitioner has exhausted all available
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,

presented."

Here,

fails

Supreme-El can still raise his claims for relief by

See Va.

to

the question

28 U.S.C. § 2254(c).

filing a petition for
courts.

by any available procedure,

a writ

Code Ann.

advance

any

§

of habeas corpus
8.01-654

coherent

(West

basis

for

in the Virginia

2013).

Supreme-El

permitting

him

to

proceed without exhausting available state court remedies.2
The

Motion

to

Dismiss

(ECF No.

11)

will

be

granted.

petition for a writ of habeas corpus will be denied.

The

The action

2 Supreme-El makes a convoluted, frivolous argument that as
a Moorish American he cannot be criminally prosecuted.

(Pet'r's

Br. Opp'n (ECF No. 15) 1-10;);
F. App'x 281, 282
(4th Cir.

see United States v. Burris, 231
2007)
(rejecting as "frivolous"
defendant's claim that the district court lacked jurisdiction
over his prosecution "because of his
status as
a Moorish
American National" (internal quotation marks omitted)); El-Bey
v. City of Greensboro, No. 1:10CV572, 2011 WL 4499168, at *1 n.l
(M.D.N.C. 2011) (rejecting as frivolous litigants' "claim to be
immune from all state and federal laws by virtue of their
supposed identities as descendants of indigenous peoples and for
other equally absurd reasons").

will

be

dismissed.

The

Court

will

deny

a

certificate

copy

of

the

of

appealability.3
The

Clerk

is

directed

to

send

a

Memorandum

Opinion to Supreme-El and counsel of record.

/s/

fit*

Robert E. Payne
Senior United States District Judge
Richmond, Virginia

Date: fyH^L^S,•**t*

3 An appeal may not be taken from the

final order in a

§ 2254
proceeding unless a judge issues
a certificate of
appealability ("COA").
28 U.S.C. § 2253(c)(1)(A).
A COA will
not issue unless a prisoner makes "a substantial showing of the
denial of a constitutional right."
28 U.S.C. § 2253(c)(2).
A
petitioner satisfies this requirement only when "reasonable
jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or
that
the
issues
presented
were
^adequate
to
encouragement to proceed further.'"
Slack v. McDaniel,

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
& n.4 (1983)).
Supreme-El fails to meet this standard.

deserve
529 U.S.
880, 893