Tippens v. Commonwealth of Virginia

Filing 53

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 07/09/2015. Copy mailed to petitioner.(tjoh, )

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

JUL - 9 2015

Richmond Division

CLERK, U.S. DISTRICTCOURT

ROBERT EARL TIPPENS, JR.,

Petitioner,

RICHMOND. VA

)
)
)

V.

)

COMMONWEALTH OF VIRGINIA,

)
)

Respondent.

Civil Action No. 3:13CV757-HEH

)
MEMORANDUM OPINION

(Adopting Report and Recommendation and Dismissing Action)

Robert Earl Tippens, Jr., a Virginia inmate proceeding pro se, filed this petition
for habeas corpus under 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition," ECF No. 3)

challenging his convictions in the Circuit Court of Mecklenburg County (hereinafter,
"Circuit Court"). Tippens argues entitlement to reliefon the following grounds:
Claim 1

"I am being held illegally beyond the expiration of my sentence."

(§ 2254 Pet. 6.)'
Claim 2

"I was improperly convicted of an offense that is not the lesser
included offense of my indicted charge." {Id. at 7.)

Claim 3

The "trial court committed a due process[^] violation by permitting
the constructive amendment [of the indictment] when it was
uncertain whether I was being convicted of conduct that was the

subject of the Grand Jury's indictment." {Id. at 9 (citation omitted).)
Claim 4

Prison officials "denied [Tippens] access to the court to appeal
issues 1, 2, & 3 herein," by unconstitutionally restricting his access
to computers at his place of incarceration. {Id. at 11.)

The Court corrects the capitalization in the quotations from Tippens's submissions.

^"No State shall... deprive any person of life, liberty, or property, without due process of
law

" U.S. Const, amend. XIV, § L

By Memorandum Opinion and Order entered on December 31, 2014, the Court
dismissed Claim 4. Tippens v. Virginia, No. 3:13CV757-HEH, 2014 WL 7462514, at *1

(E.D. Va. Dec. 31, 2014). On June 2, 2015, the Magistrate Judge issued a Report and
Recommendation wherein he recommended that the Court dismiss Claim 1 as lacking in

merit and Claims 2 and 3 as procedurally defaulted. Tippens objected. For the reasons

that follow, Tippens's Objections will be overruled the Report and Recommendation will
be accepted and adopted.
1.

THE REPORT AND RECOMMENDATION

The Magistrate Judge made the following findings and recommendation:
A.

Factual and Procedural History

In connection with his robbery of a bank employee and subsequent

flight from the police, Tippens was indicted on charges of robbery,
feloniously eluding a police officer, and attempting "to kill Sgt. W. Wells, a
law enforcement officer, for the purpose of interfering with the

performance of such officer's official duties, in violation of §§ 18.231;18.2-25 of the Code of Virginia . . . ." Indictment at 1, Commonwealth
V. Tippens, No. CRl 0-17-00 (Va. Cir. Ct. 2010). At trial, after the
prosecution presented its evidence, the Circuit Court granted the defense
motion to strike the charge of attempted capital murder of a law
enforcement officer, but allowed the jury to assess whether Tippens could
be found guilty of attempted malicious wounding of a law enforcement
officer. (May 27, 2010 Tr. 227-28.)
At the conclusion of the trial, the jury found Tippens guilty of

robbery, feloniously eluding a police officer, and attempted unlawful
wounding of a law enforcement officer. Commonwealth v. Tippens, Nos.
CRlO-17-01, CRlO-17-02, CRlO-17-03, at 1 (Va. Cir. Ct. Aug. 26, 2010).
On appeal, Tippens challenged the sufficiency of evidence on the charge of

attempted unlawful wounding of a law enforcement officer. In rejecting
Tippens's appeal, the Court of Appeals of Virginia aptly summarized the
evidence of Tippens's guilt on that charge as follows:

On December 23, 2009, appellant entered a bank,

approached the teller with a gun, and passed a note instructing
the teller to "give me all your money." As the teller moved
about to gather the cash, appellant appeared to "freak out"
and trained his gun on her, stating, "This is not a joke. I will
shoot you. People will get hurt."
After the robbery was complete, appellant fled the
bank in a white truck. Shortly thereafter. Sergeant Walter
Wells observed appellant's vehicle on Highway 58 and

pursued him. Deputy Mark Wright followed close behind
Wells in the pursuit, and Lt. Terry Edmonds fell in behind
Wright. Appellant reached speeds of over a hundred miles
per hour during the twelve-mile chase, with Wells trailing
approximately "two seconds" behind him. During the chase,
appellant slowed his vehicle without warning on two
occasions. On the first occasion, appellant changed his speed
from ninety to forty miles per hour. Although Wells was

traveling close behind appellant, he was able to maintain
distance.

Appellant sped up again to approximately one hundred
miles per hour and turned onto Highway 1. Suddenly, while
traveling approximately ninety miles per hour, appellant "toenailed" his brakes and brought his car to a dead stop. The
stop was so violent that appellant's tires squealed and
smoked. Wells, who was only a few car lengths behind
appellant, was forced to "slam" his brakes "really, really
hard" and veer sharply to the right to avoid crashing into
appellant's truck. Wright and Edmonds were forced to
swerve to avoid a collision.

Nothing was in the road ahead of appellant at the time
he stopped his car. Wells testified appellant appeared to be
"try[ing] to get me to run into him [ ] so I would be out of the
chase or hurt me... ." After stopping, appellant drove
approximately a quarter of a mile before turning left onto a
secondary road where be accelerated to over eighty miles per
hour. During the interval preceding the turn, appellant was
traveling between fifty and sixty miles per hour.
Tippens v. Commonwealth, No. 1724-10-2, at 1-2 (Va. Ct. App. Feb. 9,
2011) (second alteration in original). On direct appeal, Tippens failed to
raise any of his present claims for relief
Following his conviction, Tippens filed a number of post-conviction
motions and petitions in the Circuit Court and the Supreme Court of

Virginia. (See Resp't's Second Br. Supp. Mot. Dismiss 2-7.) Tippens
failed to present Claims 2 and 3 to the Supreme Court of Virginia in any of

those submissions. (See idf
On May 6, 2013, Tippens filed a Motion to Vacate Order in the
Circuit Court. Motion to Vacate Order at 1, Tippens v. Commonwealth,
No. CRlO-17-00/01 (Va. Cir. Ct. filed May 6, 2013). In that motion,

Tippens raised a version of Claims 2 and 3. See id. at 1-2. On May 8,
2013, the Circuit Court dismissed Tippens's Motion to Vacate Order.

Tippens v. Commonwealth, No. CRl0-17-00/01 (Va. Cir. Ct. May 8, 2013).
Tippens filed a Notice of Appeal. Notice of Appeal at 1, Tippens v.
Commonwealth, No. CRlO-17-00/01 (Va. Cir. Ct. filed June 3, 2013). On

September 13, 2013, because Tippens failed to file a timely petition for
appeal, the Supreme of Virginia returned the record to Circuit Court.
September 13, 2013 Letter at 1, Tippens v. Commonwealth, No. CRl0-1700/01 (Va. Cir. Ct. filed Sept. 13, 2013).
B.

Claim 1

In Claim 1, Tippens argues that he is being held illegally beyond the
expiration of his sentence. Following his sentencing on July 16, 2010, the
Circuit Court sentenced Tippens to fifteen years of imprisonment.
Commonwealth v. Tippens, Nos. CRl0-17-01, CRl0-17-02, CRl0-17-03
(Va. Cir. Ct. Aug. 26, 2010). "Although Tippens was not convicted and
sentenced until 2010, Tippens suggests that because of a clerical error in an
order of the Circuit Court, his sentence commenced in 2000." Tippens,
2014 WL 7462514, at *1 n.2. "Tippens's theory that he has fiilly served his
sentence [is] frivolous." Id. at *1 (citation omitted). Accordingly, it is
RECOMMENDED that Claim 1 be DISMISSED.
C.

Claims 2 and 3

1.

Exhaustion and Procedural Default

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)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.lO (1973)). The

^ No need exists to discuss all of Tippens's post-conviction submissions and the
claims raised therein because, as discussed below, for purposes of satisfying the
exhaustion requirement, Tippens must demonstrate the he fairly presented Claims
2 and 3 to the Supreme Court of Virginia.

purpose of the exhaustion requirement is "to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners'
federal rights." Picard v. 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 offered
the state courts an adequate "'opportunity'" to address the constitutional
claims advanced on federal habeas.

Baldwin v. Reese, 541 U.S. 27, 29

(2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional
internal quotation marks omitted). "To providethe 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." Id. (emphasis added) (quoting Dwwcaw, 513 U.S. at 365-66). Fair

presentation demands that a petitioner must present "'both the operative
facts and the controlling legal principles' associated with each claim" to the
state courts. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004)

(quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The
burden of proving that a claim has been exhausted in accordance with a
"state's chosen procedural scheme" lies with the petitioner. Mallory v.
Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
"A distinct but related limit on the scope of federal habeas review is

the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619
(4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and
expressly bases its dismissal of a habeas petitioner's claim on a state

procedural rule, and that procedural rule provides an independent and
adequate ground for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501
U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally
defaults claims when he or she "fails to exhaust available state remedies

and 'the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the

claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l)."*
^ Under these circumstances, even though the claim has not been fairly presented
to the Supreme Court of Virginia, the exhaustion requirement is "technically

The burden of pleading and proving that a claim is procedurally defaulted
rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th
Cir. 2010) (citations omitted). Absent a showing of cause and prejudice or
his actual innocence, this Court cannot review the merits of a defaulted
claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).
2.

Claims 2 and 3 are unexhausted and procedurally
defaulted

Tippens has not exhausted Claims 2 and 3 as he has failed to
properly present these claims to the Supreme Court of Virginia. If Tippens
now tried to present these claims to the Supreme Court of Virginia, that
court would find the claims procedurally barred pursuant to the rule in
Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) because Tippens
could have raised, but failed to raise these claims at trial and on direct

appeal. Slayton constitutes an adequate and independent state procedural
rule when so applied. See Mu'Min v, Pruett, 125 F.3d 192, 196-97 (4th Cir.
1997). Thus, Claims 2 and 3 are procedurally defaulted.
3.

Tippens's attempts to excuse his default of Claims 2
and 3

Despite the procedural default of Claims 2 and 3, this Court may
review these claims if Tippens establishes either cause and prejudice or
actual innocence. Breard, 134 F.3d at 620. "Cause" in this context means

an "objective factor external to the defense" sufficient to thwart an actual
attempt to correctly file the claims in state court. McNeill v. Polk, 476 F.3d
206, 214 (4th Cir. 2007) (citation omitted) (internal quotation marks
omitted).

a.

Tippens's argument that the ineffective
assistance of counsel constitutes cause to
excuse his default

Initially, Tippens suggests that the constitutionally ineffective
assistance of appellate counsel constitutes cause to excuse his default. {See,

e.g., § 2254 Pet. 8.) "In order to establish a claim that appellate counsel
was ineffective for failing to pursue a claim on direct appeal, the applicant
must normally demonstrate" that appellate counsel performed deficiently
met." Hedrick v. True, 443 F.3d 342, 364 (4th Cir. 2006) (citing Gray v.
Netherland, 518 U.S. 152, 161-62 (1996)).

and that a reasonable probability of a different result exists. Bell v. Jarvis,
236 F.3d 149, 164 (4th Cir. 2000) (citing Strickland v. Washington, 466
U.S. 668, 688, 694 (1984)). Counsel had no obligation to assert all nonfrivolous issues on appeal. Rather, '"winnowing out weaker arguments on
appeal and focusing on' those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate advocacy."
Smith V. Murray, Ml U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463
U.S. 745, 751-52 (1983)). A presumption exists that appellate counsel
"'decided which issues were most likely to afford relief on appeal.'" Bell,
236 F.3d at 164 (quoting Pruett v. Thompson, 996 F.2d 1560, 1568 (4th
Cir.1993)). '"[0]nly when ignored issues are clearly stronger than those

presented, will the presumption of effective assistance of counsel be
overcome.'" Id. (quoting
v. Robbins, 528 U.S. 259, 288 (2000)).
During trial, counsel failed to raise the challenges embodied in
Claims 2 and 3, that unlawful wounding of a law enforcement officer is not
a lesser-included offense of attempted murder of a law enforcement officer.

Thus, appellate counsel would have needed to demonstrate that the "ends of
justice" warranted reviewing the unobjected error. See Va. Sup. Ct. R.

5A:18.^ The Supreme Court of Virginia has held that "'[ajpplication of the
ends ofjustice exception is appropriate when the judgment of the trial court
was error and application of the exception is necessary to avoid a grave
injustice or the denial of essential rights.'" Rowe v. Commonwealth, 61S
S.E.2d 161, 165 (Va. 2009) (quoting Charles v. Commonwealth, 613 S.E.2d
432,433 (Va. 2005)).
Under circumstances similar to Tippens, however, the Supreme

Court of Virginia has stated that the ends ofjustice exception should not be
applied where the party "invited the error of which he complained before
the Court of Appeals." Id. In Rowe, the defendant was indicted for
attempted capital murder of a law enforcement officer for attempting to hit
a police officer with his vehicle. Id. at 162-63. Following a bench trial, the
trial court convicted Rowe of that charge. Id. at 163. Rowe moved the trial
court for reconsideration and "the trial court vacated its finding of guih on
the charge of attempted capital murder of a law enforcement officer, and
instead convicted Rowe of the Class 6 felony of assault and battery of a
police officer pursuant to [Virginia] Code § 18.2-57(C)." Id. On appeal,
Rowe argued that the assault and battery charge was not a lesser included
offense of the attempted capital murder charge. Id. The Supreme Court of
Virginia concluded that Rowe had invited any error with respect to the

^"No ruling of the trial court. .. will be considered as a basis for reversal unless
an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable the Court of Appeals to attain the ends of
justice," Va. Sup. Ct. R. 5A:18.

assault and battery charge because, at trial, he "advanced the assault
charge—^the charge of which he was never indicted but eventually
convicted—as a more lenient alternative to the attempted murder charge he

was then facing and maintained that it was a lesser included offense." Id. at
164-65.

Here, counsel for Tippens argued that attempted unlawful wounding
of a law enforcement officer was a lesser included offense of attempted
murder of a law enforcement officer.
(May 27, 2010 Tr. 219.)

Specifically, in persuading the Circuit Court to strike the charge of
attempted murder of a law enforcement officer, counsel argued that the
charge should "probably go[ ] to unlawful wounding because really as far
as I see the statute really the only difference is kind of a soft question of the
magnitude and indicia of the malice mens rea component.. .." (May 27,
2010 Tr. 219.) Given these circumstances, Tippens fails to demonstrate
that appellate counsel acted in a constitutionally deficient manner by
choosing to pursue the preserved challenge to the sufficiency of the
evidence, rather than the error he now asserts in Claims 2 and 3.

Accordingly, appellate counsel's actions fail to constitute cause to excuse
the default of Claims 2 and 3.

b.

Tippens's argument that the lack of
adequate access to the prison law library
should excuse his default

Next, Tippens suggests that his default should be excused because he

lacked adequate access to the prison law library and the computers therein.^
(Pet'r's Mot. to Deny Resp't's Second Mot. to Dismiss 4, ECF No. 44.)
Under a theory that the Constitution guarantees inmates reasonable access
to the courts, some courts have concluded that the lack of access to an

adequate prison law library may constitute cause sufficient to excuse a
procedural default. See Spencer v. Magrady, No. 10-703, 2010 WL
5830500, at *6-7 (E.D. Pa. Dec. 1, 2010) (citing cases). Here, however, the
defauh occurred during the course Tippens's direct appeal, when he was

represented by counsel. Virginia satisfied Tippens's "right of access to the
courts by appointing appellate counsel." Jones v. Armstrong, 367 F. App'x
256, 258-59 (2d Cir. 2010); jee Lindsey v. Shaffer, 411 F. App'x 466, 469
(3d Cir. 2011) (citations omitted) ("[A] state can ftilly discharge its
obligation to provide a prisoner with access to the courts by appointing

^In Claim 4, Tippens raised the lack of adequate access to the prison law library
and the computers therein as an independent basis for habeas relief Although the
Court rejected this as independent basis for habeas relief, the Court must still
consider this alleged impediment as a basis for excusing his default.
8

counsel."); Hause v. Vaught, 993 F.2d 1079, 1084 (4th Cir. 1993)
(observing that an inmate's right to meaningful access to the courts "can be
satisfied either by providing prisoners with adequate law libraries or with
adequate assistance from persons trained in the law" (citing Bounds v.
Smith, 430 U.S. 817, 828 (1977))). Thus, any inadequate access to the law
library or the computers therein, fails to constitute a viable basis for
excusing Tippens's default.
c.

Tippens's argument regarding actual innocence

Tippens also suggests he is "actually] innocent of the charge of
attempted malicious wounding...." (Pet'r's Mot. to Deny Resp't's
Second Mot. Dismiss 5 (citation omitted).) Tippens, however, was not
convicted of that charge. He was convicted of unlawful wounding of a law
enforcement officer. Moreover, Tippens has not submitted any new
reliable evidence of his innocence of the charges of which he stands
convicted. See Schlup v. Delo, 513 U.S. 298, 324 (1995). Thus, the Court
cannot excuse his default on the basis of his actual innocence.

Tippens also argues that the lack of an indictment charging
attempted unlawful wounding of law enforcement officer renders his
conviction "VOID for want of subject matter jurisdiction," and he can raise
such a challenge at any time. (Pet'r's Mot. to Deny Resp't's Second Mot.
Dismiss 3.) Such an argument fails to provide a basis for avoiding his
procedural default. See Jenkins v. Johnson, 231 F. App'x 618, 619 (9th
Cir. 2007) (concluding petitioner procedurally defaulted claim that trial
court lacked subject matter jurisdiction). Moreover, the underlying
argument lacks merit. Sigsby v. Hinkle, No. I:10cvl256 (GBL/IDD), 2012
WL 346692, at *3 (E.D. Va. Feb. 1, 2012) (explaining that the Court of
Appeals of Virginia had overruled prior "decisions to the extent that they
conclude a conviction of an offense that is not a lesser-included offense of

the indicted charge renders the judgment void, i.e., it can be raised at any
time in court" (quoting Edwards v. Commonwealth, 589 S.E.2d 444, 450
(Va. Ct. App. 2012))).
As Tippens has failed to demonstrate any basis for excusing his
default, it is RECOMMENDED that Claims 2 and 3 be DISMISSED.

Accordingly, it is RECOMMENDED that Respondent's Motion to
Dismiss (ECF No. 40) be GRANTED and that the action be DISMISSED.
(Report and Recommendation entered June 2, 2015 (alterations in original).)

11.

STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION

"The magistrate makes only a recommendation to this court. The recommendation

has no presumptive weight, and the responsibility to make a final determination remains
with this court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing

Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo

determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of

objections to a magistrate's report enables the district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties' dispute." Thomas v. Arn,
474 U.S. 140, 147 (1985). When reviewing the magistrate's recommendation, this Court

"may also receive further evidence." 28 U.S.C. § 636(b)(1).
III.

TIPPENS'S OBJECTIONS

In his first objection, Tippens asserts that the Magistrate Judge "failed to
acknowledge and address Tippens['s] assertion of cause and prejudice to excuse his
default." (Objs. H1.) This is simply not true. The Magistrate Judge acknowledged and
rejected Tippens's assertion of cause of prejudice to excuse his default. Accordingly,
Tippens's first objection will be overruled.
In his second objection Tippens asserts that he "did raise a version of Claim 2 and

3" to the Supreme Court of Virginia. {Id.) Tippens fails to direct the Court to where or
how he properly exhausted Claims 2 and 3 or explain why these claims are not defaulted.
Accordingly, Tippens's second objection will be overruled.

10

In his third, fourth, and seventh objections, Tippens insists that he has estabUshed

his innocence of the charge of attempted malicious wounding of a law enforcement

officer. These objections lack merit for the reasons stated by the Magistrate Judge.
Namely, Tippens was not convicted of the charged of attempted malicious wounding of a
law enforcement and he has not submitted any new reliable evidence of his innocence of

the charges of which he stands convicted. Tippens's third, fourth, and seventh objections
will be overruled.

In his fifth and sixth objection and on pages 5 and 6 of his objections, Tippens

disagrees that he defaulted Claims 2 and 3 by failing to raise them on direct appeal.
Tippens, however, fails to provide any coherent argument that undermines the conclusion
that these claims are barred by the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.

1974) because Tippens could have raised, but failed to raise these claims at trial and on
direct appeal. Accordingly, these objections will be overruled.
In his eighth objection, Tippens insists that his default of Claims 2 and 3 should be

excused due to the alleged ineffective assistance of his appellate counsel. Tippens simply
ignores the Magistrate Judge's cogent explanation as to why the appellate counsel
reasonably declined to pursue these claims because they had not been raised in the Circuit
Court. Tippens's eighth objection will be overruled.

In his ninth objection, Tippens revisits his complaint that he failed to receive
adequate access to the law library at his place of confinement. As fully explained in the

Report and Recommendation, any problems with the law library did not contribute to the

default of Claims 2 and 3. Also as part of his ninth objection, Tippens contends he "does
11

not need to provide a basis for avoiding ... procedural default" because the Circuit Court

lacked jurisdiction. (Objs. 5.) As explained in the Report and Recommendation, the

procedural default doctrine applies to Tippens's challenges to the Circuit Court's
personal jurisdiction and subject matter jurisdiction. Tippens's ninth objection will be
overruled.

In his tenth objection, Tippens contends that "[a] federal court may address a
habeas petition brought by a state defendant if the [IJast state court to which the petitioner
presented the federal claims did not clearly and expressly rely on an independent and
adequate state ground in denying relief to the petitioner." (Objs. 5-6.) Tippens is
incorrect. The exhaust requirement required him to properly present his claims to the
Supreme Court of Virginia. Tippens never properly presented his claims to that court. If
he now attempted to present his claims to the Supreme Court of Virginia that court would
find Claims 2 and 3 procedurally defaulted. Tippens's tenth objection will be overruled.
In his eleventh objection, Tippens complains that the Court failed to reach the

merits of Claims 2 and 3. No need exists to address the merits of these claims as they are
defaulted. Tippens's eleventh objection will be overruled.

In his twelfth objection, Tippens states in whole, "as the report and

recommendation has failed to raise any procedural defense. See Rivenbark v. Virginia,
305 F. App'x 144, 145 (4th Cir. 2008)." {Id. at 6 (citation corrected).) This objection
does not make any sense and will be overruled.

12

IV.

CONCLUSION

Tippens's objections will be overruled. The Report and Recommendation will be

accepted and adopted. Tippens's Motion for Leave to File a Motion to Stay the
Enforcement of the State's Judgment (EOF No. 49) and Motion for Release Pending

Appellate Review (EOF No. 38) will be denied. Tippens's Motion to Amend the § 2254
Petition to add a petitioner and a respondent (EOF No. 37) will be denied as moot. The
Motion to Dismiss (ECF No. 40) will be granted. Jones's claims and the action will be

dismissed. A certificate ofappealability will be denied.^
An appropriate Final Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson
United States District Judge

Date:
Richmond, Virginia

' An appeal may not betaken 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.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Tippens fails to meet this standard.
Accordingly, the Court will deny a certificate of appealability.
13