Meyers v. Newton

Filing 11

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 01/21/2014. (tjoh, )

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JAN 2 2 2014

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

Petitioner,
Civil Action No. 3:12CV857

JEFFERY L. NEWTON,

Respondent.
MEMORANDUM OPINION

David Meyers, a Virginia state prisoner proceeding pro se, brings this petition pursuant to
28 U.S.C. § 2254 ("§ 2254 Petition"). Respondent moves to dismiss, inter alia, on the ground
that Meyers has failed to exhaust his remedies available in state court. Respondent provided

Meyers with appropriate Roseboro1 notice. (ECF No. 8.) Meyers has responded. The matter is
ripe for disposition.
I. PROCEDURAL HISTORY

In his § 2254 Petition, Meyers asserts that he wishes to challenges his convictions in the

General District Court of the City of Petersburg ("General District Court") and the Circuit Court
of the City of Petersburg ("Circuit Court") for "possession of firearm, use of [a] firearm,

malicious wounding, abduction, robbery, possession of ammunition, [and] contempt of
court.. .." (§ 2254 Pet. 1, ECF No. 1 (capitalization and punctuation corrected.)
The record reflects that on November 2, 2012, the General District Court convicted
Meyers of summary contempt. (See Mem. Supp. Mot. Dismiss Ex. B, at 1-2.) Although Meyers

generally swears that he appealed the convictions listed in his petition, (see § 2254 Pet. 2-6), he

1Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

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CLERK, U.S. DISTRICT COURT
RICHMOND. VA

DAVID MEYERS,

v.

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fails to coherently articulate that he pursued any direct appeal following his conviction in the
General District Court on November 2,2012. Meyers executed his § 2254 Petition on November
12,2012, ten days after his conviction on the contempt charge. (Id. at 16.)

A grand jury in the Circuit Court returned indictments against Meyers for four counts of

use of a firearm in the commission of a felony, (Mem. Supp. Mot. Dismiss Ex. A,2 at 1, 3,5, 11,
ECF No. 7-1), felon in possession of a firearm (id. at 7), malicious wounding (id. at 9), and two

counts of abduction by force or intimidation (id. at 13, 15), and robbery (id. at 17). Meyers is

currently awaiting ajury trial on all of these charges, which is setfor March 6, 2014.3
II. ANALYSIS

"As a general rule, in the absence of 'exceptional circumstances where the need for the

remedy afforded by the writ of habeas corpus is apparent,' Bowen v. Johnston, 306 U.S. 19, 27
(1939), courts 'require[ ] exhaustion of alternative remedies before a prisoner can seek federal
habeas relief.'" Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (alteration in original)
(parallel citation omitted) (quoting Boumediene v. Bush, 553 U.S. 723, 793 (2008)). In this
regard, "[i]n the case of those detained by states, principles of federalism and comity generally
require the exhaustion of available state court remedies before [the federal courts] conduct
habeas review of the detention." Id. at 531 n.5 (citing Boumediene, 553 U.S. at 793). Thus,

2The Court employs the pagination assigned to this exhibit by the Court's CM/ECF
docketing system. Exhibit A consists of documents printed from Virginia Judicial System
website. Federal courts in the Eastern District of Virginia regularly take judicial notice of the
information contained on this website. See, e.g., Newkirk v. Lerner, No. 3:13CV570-HEH, 2013
WL 4811219, at *1 n.l (E.D. Va. Sept. 9, 2013); Roberts v. Watson, 697 F. Supp. 2d 646, 648
n.l(E.D.Va.2010).
See http://www.courts.state.va.us/main.htm (select "Case Status and Information;"
select "Circuit Court" from drop-down menu; select hyperlink for "Case Information"; select
"Petersburg Circuit" from drop-down menu and follow "Begin" button; type "Meyers, David,"
and then follow "Search by Name" button; then follow hyperlinks for "CR12001211-00,"
"CR12001211-01," "CR12001248-00" through "CR12001255-01").

"federal courts should abstain from the exercise of [habeas] jurisdiction if the issues raised in the

petitionmay be resolved either by trial on the merits in the state court or by other state
procedures available to the petitioner." Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir.

1987) (citations omitted); Durkin v. Davis, 538 F.2d 1037, 1041 (4th Cir. 1976) (citation
omitted) (internal quotation marks omitted) ("Until the State has been accorded a fair

opportunity by any available procedure to consider the issue and afford a remedy if relief is
warranted, federal courts in habeas proceedings by state prisoners should stay their hand.").

"Relief for state pretrial detainees through a federal petition for a writ of habeas corpus is
generally limited to speedy trial and double jeopardy claims, and only after the petitioner has
exhausted state-court remedies." Olsson v. Curran, 328 F. App'x 334, 335 (7th Cir. 2009)

(citing Braden v. 30thJudicial Circuit Court ofKy., 410 U.S. 484, 489-92 (1973); Younger v.
Harris, 401 U.S. 37, 49 (1971); Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir.

2007); In re Justices ofthe Superior Court Dep 7 ofMass. Trial Court, 218 F.3d 11, 19 (1st Cir.
2000); Neville v. Cavanagh, 611 F.2d 673, 675 (7th Cir. 1979)).

Here, the issues raised by Meyers may be resolved either by trial, direct appeal, or
collateral appeal. Meyers fails to demonstrate that any exceptional circumstances warrant the

consideration of his habeas petition at this time. Accordingly, Meyers's § 2254 Petition and the
action will be dismissed without prejudice because Meyers has failed to exhaust available state

remedies or demonstrate that exceptional circumstances warrant consideration of his petition at
this juncture. See Williams v. Simmons,No. 3:10CV709-HEH, 2011 WL 2493752, at *1-2
(E.D. Va. June 22, 2011) (dismissing without prejudice similar habeas petition by pretrial

detainee). Accordingly, the Motion to Dismiss (ECF No. 6) will be GRANTED. The action will
be DISMISSED WITHOUT PREJUDICE.

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). 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 or

that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slackv.
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 Meyers is entitled to further consideration in this
matter. A COA will therefore be DENIED.

An appropriate Order shall issue.

Date:/-97-/*/Richmond, Virginia

JsL
James R. Spencer

United States District Judge