Brown-El v. Newton
Filing
3
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 9/30/13. Copy sent: Yes(tdai, ) (Main Document 3 replaced on 9/30/2013) (tdai, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TINA BROWN-EL,
Petitioner,
Civil Action No. 3:13CV633-HEH
JEFFREY NEWTON,
Respondent.
MEMORANDUM OPINION
(Dismissing Without Prejudice 28 U.S.C. § 2254 Petition)
Tina Brown-El, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2254
("§ 2254 Petition")- In her § 2254 Petition, Brown-El seeks to challenge her conviction
in the "Hopewell General District Traffic Court" for "failure to appear." (§ 2254 Pet. 1.)
A letter attached to Brown-El's § 2254 Petition indicates she was scheduled to appear in
court for the above charge on September 3, 2013. (Id. Ex. A.) Brown-El indicates that
she has not pursued an appeal or any post-conviction remedies in state court with respect
to the above conviction. (Id. at 3-13.)
"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, "federal courts should abstain from the
exercise of [habeas] jurisdiction if the issues raised in the petition may 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, 224 (5th Cir. 1987) (citations
omitted); Durkin v. Davis, 538 F.2d 1037, 1041 (4th Cir. 1976) (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 [inmates] should stay their hand.").
Here, the issues raised by Brown-El may be resolved either by direct or collateral
appeal. Brown-El fails to demonstrate that any exceptional circumstances warrant the
consideration of his habeas petition at this time. Accordingly, Brown-El's § 2254
Petition and the action will be dismissed without prejudice because Brown-El 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).
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 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 Brown-El is entitled to further consideration in this matter. A
COA will therefore be denied.
Anappropriate Order shall accompany this Memorandum Opinion.
Akfl
*
Date: >cfr. 3a)2oll
Richmond, Virginia
/s/
HENRY E.HUDSON
UNITED STATES DISTRICT JUDGE
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